_________________________________________________________________
SEALRIGHT CO., INC.
$75,000,000
SENIOR NOTES
MASTER SHELF AGREEMENT
Dated as of October 17, 1995
_________________________________________________________________
TABLE OF CONTENTS
(Not Part of Agreement)
Page
1. AUTHORIZATION OF ISSUE OF NOTES.. . . . . . . . . . . . . . . . . . .1
2. PURCHASE AND SALE OF NOTES. . . . . . . . . . . . . . . . . . . . . .2
2A. Facility.. . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2B. Issuance Period. . . . . . . . . . . . . . . . . . . . . . . . .2
2C. Periodic Spread Information. . . . . . . . . . . . . . . . . . .2
2D. Request for Purchase.. . . . . . . . . . . . . . . . . . . . . .3
2E. Rate Quotes. . . . . . . . . . . . . . . . . . . . . . . . . . .3
2F. Acceptance.. . . . . . . . . . . . . . . . . . . . . . . . . . .3
2G. Market Disruption. . . . . . . . . . . . . . . . . . . . . . . .4
2H. Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2I. Fees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
3. CONDITIONS OF CLOSING.. . . . . . . . . . . . . . . . . . . . . . . .6
3A. Certain Documents. . . . . . . . . . . . . . . . . . . . . . . .7
3B. Opinion of Purchaser's Special Counsel.. . . . . . . . . . . . .8
3C. Representations and Warranties; No Default.. . . . . . . . . . .8
3D. Purchase Permitted by Applicable Laws. . . . . . . . . . . . . .8
3E. Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . .8
3F. Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . .8
3G. Payment of Fees. . . . . . . . . . . . . . . . . . . . . . . . .8
4. PREPAYMENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
4A. Scheduled Prepayments. . . . . . . . . . . . . . . . . . . . . .9
4B. Optional Prepayment With Yield-Maintenance Amount. . . . . . . .9
4C. Notice of Optional Prepayment. . . . . . . . . . . . . . . . . .9
4D. Application of Prepayments.. . . . . . . . . . . . . . . . . . .9
4E. Retirement of Notes.. . . . . . . . . . . . . . . . . . . . . . .9
5. AFFIRMATIVE COVENANTS.. . . . . . . . . . . . . . . . . . . . . . . 10
5A. Financial Statements.. . . . . . . . . . . . . . . . . . . . . 10
5B. Information Required by Rule 144A. . . . . . . . . . . . . . . 12
5C. Inspection of Property.. . . . . . . . . . . . . . . . . . . . 12
5D. Covenant to Secure Note Equally. . . . . . . . . . . . . . . . 12
5E. To Keep Books. . . . . . . . . . . . . . . . . . . . . . . . . 12
5F. Payment of Taxes; Corporate Existence; Maintenance of
Properties.. . . . . . . . . . . . . . . . . . . . . . . . . . 12
5G. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5H. Compliance with Laws.. . . . . . . . . . . . . . . . . . . . . 13
6. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . 14
6A. Current Ratio. . . . . . . . . . . . . . . . . . . . . . . . . 14
6B. Tangible Net Worth.. . . . . . . . . . . . . . . . . . . . . . 14
6C. Consolidated Funded Indebtedness.. . . . . . . . . . . . . . . 14
6D. Consolidated Total Indebtedness. . . . . . . . . . . . . . . . 14
6E. Short-Term Working Capital Indebtedness. . . . . . . . . . . . 14
6F. Fixed Charge Coverage. . . . . . . . . . . . . . . . . . . . . 14
6G. Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6H. Certain Restrictions Relating to Subsidiaries. . . . . . . . . 16
6I. Merger, Consolidation, Sale or Lease.. . . . . . . . . . . . . 16
6J. Transactions with Affiliates.. . . . . . . . . . . . . . . . . 17
6K. Investments. . . . . . . . . . . . . . . . . . . . . . . . . . 17
6L. Restricted Payments. . . . . . . . . . . . . . . . . . . . . . 18
6M. Sales and Leasebacks.. . . . . . . . . . . . . . . . . . . . . 19
6N. Maintenance of Present Business. . . . . . . . . . . . . . . . 19
7. EVENTS OF DEFAULT.. . . . . . . . . . . . . . . . . . . . . . . . . 19
7A. Acceleration.. . . . . . . . . . . . . . . . . . . . . . . . . 19
7B. Other Remedies.. . . . . . . . . . . . . . . . . . . . . . . . 22
8. REPRESENTATIONS, COVENANTS AND WARRANTIES.. . . . . . . . . . . . . 22
8A. Organization.. . . . . . . . . . . . . . . . . . . . . . . . . 22
8B. Financial Statements.. . . . . . . . . . . . . . . . . . . . . 23
8C. Actions Pending. . . . . . . . . . . . . . . . . . . . . . . . 23
8D. Outstanding Indebtedness.. . . . . . . . . . . . . . . . . . . 24
8E. Title to Properties. . . . . . . . . . . . . . . . . . . . . . 24
8F. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8G. Conflicting Agreements and Other Matters.. . . . . . . . . . . 24
8H. Offering of Notes. . . . . . . . . . . . . . . . . . . . . . . 25
8I. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 25
8J. ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8K. Governmental Consent.. . . . . . . . . . . . . . . . . . . . . 26
8L. Environmental and Other Regulatory Compliance. . . . . . . . . 26
8M. Disclosure.. . . . . . . . . . . . . . . . . . . . . . . . . . 26
8N. Licenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8O. Investment Company Act.. . . . . . . . . . . . . . . . . . . . 27
8P. Hostile Tender Offers. . . . . . . . . . . . . . . . . . . . . 27
9. REPRESENTATIONS OF THE PURCHASERS. . . . . . . . . . . . . . . . . 27
9A. Nature of Purchase.. . . . . . . . . . . . . . . . . . . . . . 27
9B. Source of Funds. . . . . . . . . . . . . . . . . . . . . . . . 27
10. DEFINITIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10A. Yield-Maintenance Terms. . . . . . . . . . . . . . . . . . . . 28
10B. Other Terms. . . . . . . . . . . . . . . . . . . . . . . . . . 29
10C. Accounting Principles, Terms and Determinations. . . . . . . . 37
11. MISCELLANEOUS.. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
11A. Note Payments. . . . . . . . . . . . . . . . . . . . . . . . . 37
11B. Expenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
11C. Consent to Amendments. . . . . . . . . . . . . . . . . . . . . 38
11D. Form, Registration, Transfer and Exchange of Notes;
Lost Notes. . . . . . . . . . . . . . . . . . . . . . . . . . 39
11E. Persons Deemed Owners; Participations. . . . . . . . . . . . . 40
11F. Survival of Representations and Warranties; Entire
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11G. Successors and Assigns.. . . . . . . . . . . . . . . . . . . . 40
11H. Disclosure to Other Persons; Confidentiality.. . . . . . . . . 40
11I. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11J. Payments Due on Non-Business Days. . . . . . . . . . . . . . . 41
11K. Satisfaction Requirement.. . . . . . . . . . . . . . . . . . . 41
11L. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 42
11M. Severability.. . . . . . . . . . . . . . . . . . . . . . . . . 42
11N. Descriptive Headings.. . . . . . . . . . . . . . . . . . . . . 42
11O. Counterparts.. . . . . . . . . . . . . . . . . . . . . . . . . 42
11P. Binding Agreement. . . . . . . . . . . . . . . . . . . . . . . 42
INFORMATION SCHEDULE
SCHEDULE 6G EXISTING LIENS
SCHEDULE 6H EXISTING INDEBTEDNESS
SCHEDULE 8A LIST OF SUBSIDIARIES
SCHEDULE 8G -- LIST OF AGREEMENTS RESTRICTING DEBT
EXHIBIT A-1 -- FORM OF NOTE
EXHIBIT A-2 -- FORM OF SERIES A NOTE
EXHIBIT B -- FORM OF REQUEST FOR PURCHASE
EXHIBIT C -- FORM OF CONFIRMATION OF ACCEPTANCE
EXHIBIT D -- FORM OF OPINION OF COMPANY'S COUNSEL
EXHIBIT E -- FORM OF CONFIDENTIALITY LETTER
SEALRIGHT CO., INC.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxx 00000
As of October 17, 1995
To: The Prudential Insurance Company
of America (herein called "Prudential")
Each Prudential Affiliate (as hereinafter
defined) which becomes bound by certain
provisions of this Agreement as hereinafter
provided (together with Prudential, the
"Purchasers")
c/o Prudential Capital Group
Gateway Center Four
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Ladies and Gentlemen:
The undersigned, Sealright Co., Inc. (the "Company"),
hereby agrees with you as follows:
1. AUTHORIZATION OF ISSUE OF NOTES. The Company will
authorize the issue of its senior promissory notes (the "Notes")
in the aggregate principal amount of $75,000,000, to be dated the
date of issue thereof; to mature, in the case of each Note so
issued, no more than 15 years after the date of original issuance
thereof; to have an average life, in the case of each note so
issued, of no more than 12 years after the date of original
issuance thereof; to bear interest on the unpaid balance thereof
from the date thereof at the rate per annum, and to have such
other particular terms, as shall be set forth, in the case of
each Note so issued, in the Confirmation of Acceptance with
respect to such Note delivered pursuant to paragraph 2F; and to
be substantially in the form of Exhibit A-1 attached hereto. The
term "Notes" as used herein shall include each Note delivered
pursuant to any provision of this Agreement and each Note
delivered in substitution or exchange for any such Note pursuant
to any such provision. Notes which have (i) the same final
maturity, (ii) the same installment payment dates, (iii) the same
installment payment amounts (as a percentage of the original
principal amount of each Note), (iv) the same interest rate, (v)
the same interest payment periods, and (vi) the same original
date of issuance are herein called a "Series" of Notes.
Capitalized terms used herein have the meanings specified in
paragraph 10.
2. PURCHASE AND SALE OF NOTES.
2A. Facility. Prudential is willing to consider, in
its sole discretion and within limits which may be authorized for
purchase by Prudential and Prudential Affiliates from time to
time, the purchase of Notes pursuant to this Agreement. The
willingness of Prudential to consider such purchase of Notes is
herein called the "Facility". At any time, the aggregate
principal amount of Notes stated in paragraph 1, minus the
aggregate principal amount of Notes purchased and sold pursuant
to this Agreement prior to such time, minus the aggregate
principal amount of Accepted Notes (as hereinafter defined) which
have not yet been purchased and sold hereunder prior to such time
is herein called the "Available Facility Amount" at such time.
NOTWITHSTANDING THE WILLINGNESS OF PRUDENTIAL TO CONSIDER
PURCHASES OF NOTES, THIS AGREEMENT IS ENTERED INTO ON THE EXPRESS
UNDERSTANDING THAT NEITHER PRUDENTIAL NOR ANY PRUDENTIAL
AFFILIATE SHALL BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE
NOTES, OR TO QUOTE RATES, SPREADS OR OTHER TERMS WITH RESPECT TO
SPECIFIC PURCHASES OF NOTES, AND THE FACILITY SHALL IN NO WAY BE
CONSTRUED AS A COMMITMENT BY PRUDENTIAL OR ANY PRUDENTIAL
AFFILIATE.
2B. Issuance Period. Notes may be issued and sold
pursuant to this Agreement until the earlier of (i) the second
anniversary of the date of this Agreement (or if any such
anniversary is not a Business Day, the Business Day next
preceding such anniversary) and (ii) the thirtieth day after
Prudential shall have given to the Company, or the Company shall
have given to Prudential, a notice stating that it elects to
terminate the issuance and sale of Notes pursuant to this
Agreement (or if such thirtieth day is not a Business Day, the
Business Day next preceding such thirtieth day). The period
during which Notes may be issued and sold pursuant to this
Agreement is herein called the "Issuance Period".
2C. Periodic Spread Information. Provided no Default
or Event of Default exists, not later than 10:30 A.M. (New York
City local time) on a Business Day during the Issuance Period if
there is an Available Facility Amount on such Business Day, the
Company may request by telecopier or telephone, and Prudential
will, to the extent reasonably practicable, provide to the
Company on such Business Day (or, if such request is received
after 10:30 A.M. (New York City local time) on such Business Day,
on the following Business Day), information (by telecopier or
telephone) with respect to various spreads at which Prudential or
Prudential Affiliates might be interested in purchasing Notes of
different average lives; provided, however, that the Company may
not make such requests more frequently than once in every five
Business Days or such other period as shall be mutually agreed to
by the Company and Prudential. The amount and content of
information so provided shall be in the sole discretion of
Prudential but it is the intent of Prudential to provide
information which will be of use to the Company in determining
whether to initiate procedures for use of the Facility.
Information so provided shall not constitute an offer to purchase
Notes, and neither Prudential nor any Prudential Affiliate shall
be obligated to purchase Notes at the spreads specified.
Information so provided shall be representative of potential
interest only for the period commencing on the day such
information is provided and ending on the earlier of the fifth
Business Day after such day and the first day after such day on
which further spread information is provided. Prudential may
suspend or terminate providing information pursuant to this
paragraph 2C if, in its sole discretion, it determines that there
has been an adverse change in the credit quality of the Company
after the date of this Agreement.
2D. Request for Purchase. The Company may from time
to time during the Issuance Period make requests for purchases of
Notes (each such request being a "Request for Purchase"). Each
Request for Purchase shall be made to Prudential by telecopier
and confirmed by nationwide overnight delivery service, and shall
(i) specify the aggregate principal amount of Notes covered
thereby, which shall not be less than $5,000,000 and not be
greater than the Available Facility Amount at the time such
Request for Purchase is made, (ii) specify the principal amounts,
final maturities, principal prepayment dates and amounts and
interest payment periods (quarterly or semi-annual in arrears) of
the Notes covered thereby, (iii) specify the use of proceeds of
such Notes, (iv) specify the proposed day for the closing of the
purchase and sale of such Notes, which shall be a Business Day
during the Issuance Period not less than 10 days and not more
than 25 days after the making of such Request for Purchase, (v)
specify the number of the account and the name and address of the
depository institution to which the purchase prices of such Notes
are to be transferred on the Closing Day for such purchase and
sale, (vi) certify that the representations and warranties
contained in paragraph 8 are true on and as of the date of such
Request for Purchase except to the extent of changes caused by
the transactions herein contemplated and that there exists on the
date of such Request for Purchase no Event of Default or Default,
(vii) specify the Designated Spread for such Notes, and (viii) be
substantially in the form of Exhibit B attached hereto. Each
Request for Purchase shall be in writing and shall be deemed made
when received by Prudential.
2E. Rate Quotes. Not later than five Business Days
after the Company shall have given Prudential a Request for
Purchase pursuant to paragraph 2D, Prudential may, but shall be
under no obligation to, provide (by telephone promptly thereafter
confirmed by telecopier, in each case no earlier than 9:30 A.M.
and no later than 1:30 P.M. New York City local time) interest
rate quotes for the several principal amounts, maturities,
installment payment schedules, and interest payment periods of
Notes specified in such Request for Purchase. Each quote shall
represent the interest rate per annum payable on the outstanding
principal balance of such Notes until such balance shall have
become due and payable, at which Prudential or a Prudential
Affiliate would be willing to purchase such Notes at 100% of the
principal amount thereof.
2F. Acceptance. Within 30 minutes after Prudential
shall have provided any interest rate quotes pursuant to
paragraph 2E or, in the event that due to conditions in the
market place it shall not be feasible to hold such interest rate
quotes open 30 minutes, such shorter period as Prudential may
specify to the Company (such period being the "Acceptance
Window"), the Company may, subject to paragraph 2G, elect to
accept such interest rate quotes as to not less than $5,000,000
aggregate principal amount of the Notes specified in the related
Request for Purchase. Such election shall be made by an
Authorized Officer of the Company notifying Prudential by
telephone or telecopier within the Acceptance Window (but not
earlier than 9:30 A.M. or later than 1:30 P.M., New York City
local time) that the Company elects to accept such interest rate
quotes, specifying the Notes (each such Note being an "Accepted
Note") as to which such acceptance (an "Acceptance") relates.
The day the Company notifies an Acceptance with respect to any
Accepted Notes is herein called the "Acceptance Day" for such
Accepted Notes. Any interest rate quotes as to which Prudential
does not receive an Acceptance within the Acceptance Window shall
expire, and no purchase or sale of Notes hereunder shall be made
based on such expired interest rate quotes. Subject to paragraph
2G and the other terms and conditions hereof, the Company agrees
to sell to Prudential or a Prudential Affiliate, and Prudential
agrees to purchase, or to cause the purchase by a Prudential
Affiliate of, the Accepted Notes at 100% of the principal amount
of such Notes. As soon as practicable following the Acceptance
Day, the Company, Prudential and each Prudential Affiliate which
is to purchase any such Accepted Notes will execute a
confirmation of such Acceptance substantially in the form of
Exhibit C attached hereto (a "Confirmation of Acceptance").
2G. Market Disruption. Notwithstanding the provisions
of paragraph 2F, if Prudential shall have provided interest rate
quotes pursuant to paragraph 2E and thereafter prior to the time
an Acceptance with respect to such quotes shall have been
notified to Prudential in accordance with paragraph 2F the
domestic market for U.S. Treasury Securities or derivatives shall
have closed or there shall occur a general suspension, material
limitation, or significant disruption of trading in securities
generally on the New York Stock Exchange or in the market for
U.S. Treasury securities and other financial instruments, then
such interest rate quotes shall expire, and no purchase or sale
of Notes hereunder shall be made based on such expired interest
rate quotes. If the Company thereafter notifies Prudential of
the Acceptance of any such interest rate quotes, such Acceptance
shall be ineffective for all purposes of this Agreement, and
Prudential shall promptly notify the Company that the provisions
of this paragraph 2G are applicable with respect to such
Acceptance.
2H. Closing.
2H(1) Initial Closing -- The Company hereby agrees
to sell to Prudential and, subject to the terms and conditions
herein set forth, Prudential agrees to purchase from the Company
under the Facility $30,000,000 of 7.09% Senior Notes, Series A,
due October 17, 2010 (the "Series A Notes") at 100% of such
aggregate principal amount. The Series A Notes shall be
substantially in the form of Exhibit A-2 attached hereto. The
Company will deliver to Prudential, at the offices of Xxxxx Xxxx
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, one or more Notes
registered in Prudential's name, evidencing the aggregate
principal amount of Series A Notes to purchase by Prudential and
in the denomination or denominations specified in the Information
Schedule attached hereto against payment of the purchase price
thereof by transfer of immediately available funds to the credit
of the Company's account #9801168215 at UMB Bank, n.a., Kansas
City, Missouri (ABA No. 000000000) on the date of closing, which
shall be October 17, 1995, or any other date upon which the
Company and Prudential may mutually agree (the "Initial
Closing").
2H(2) Subsequent Closings. Not later than 11:30
A.M. (New York City local time) on the Closing Day for any
Accepted Notes, the Company will deliver to each Purchaser listed
in the Confirmation of Acceptance relating thereto at such place
in New York City as is specified in the Confirmation of
Acceptance or such other place as the parties shall agree the
Accepted Notes to be purchased by such Purchaser in the form of
one or more Notes in authorized denominations as such Purchaser
may request for each Series of Accepted Notes to be purchased on
the Closing Day, dated the Closing Day and registered in such
Purchaser's name (or in the name of its nominee), against payment
of the purchase price thereof by transfer of immediately
available funds for credit to the Company's account specified in
the Request for Purchase of such Notes.
2H(3) Rescheduled Closings. If the Company fails
to tender to any Purchaser the Accepted Notes to be purchased by
such Purchaser on the scheduled Closing Day for such Accepted
Notes as provided above in this paragraph 2H, or any of the
conditions specified in paragraph 3 shall not have been fulfilled
by the time required on such scheduled Closing Day, the Company
shall, prior to 1:00 P.M. (New York City local time) on such
scheduled Closing Day notify such Purchaser in writing whether
(x) such closing is to be rescheduled (such rescheduled date to
be a Business Day during the Issuance Period not less than one
Business Day and not more than 30 Business Days after such
scheduled Closing Day (the "Rescheduled Closing Day") and certify
to such Purchaser that the Company reasonably believes that it
will be able to comply with the conditions set forth in paragraph
3 on such Rescheduled Closing Day and that the Company will pay
the Delayed Delivery Fee in accordance with paragraph 2I(2) or
(y) such closing is to be canceled as provided in paragraph
2I(3). In the event that the Company shall fail to give such
notice referred to in the preceding sentence, such Purchaser may
at its election, at any time after 1:00 P.M. (New York City local
time) on such scheduled Closing Day, notify the Company in
writing that such closing is to be canceled as provided in
paragraph 2I(3).
2I. Fees.
2I(1) Facility Fee -- The Company will pay to
Prudential in immediately available funds a fee (the "Facility
Fee") (i) at the time of the execution and delivery of this
Agreement by the Company and Prudential, in an amount equal to
$20,000 and (ii) on each Closing Day occurring after December 31,
1995, in an amount equal to 0.15% of the aggregate principal
amount of Notes sold on such Closing Day.
2I(2) Delayed Delivery Fee -- If the closing of the
purchase and sale of any Accepted Note is delayed for any reason
beyond the original Closing Day for such Accepted Note, the
Company will pay to Prudential on the Cancellation Date or actual
closing date of such purchase and sale (if such Cancellation Date
or closing date occurs on a date later than the date specified in
the Confirmation of Acceptance for such Accepted Note), a fee
(the "Delayed Delivery Fee") calculated as follows:
(BEY - MMY) X DTS/360 X PA
where "BEY" means Bond Equivalent Yield, i.e., the bond
equivalent yield per annum of such Accepted Note, "MMY" means
Money Market Yield, i.e., the yield per annum on high quality
commercial paper or, if such commercial paper is unavailable for
purchase at such time , an alternative investment selected by
Prudential on the date Prudential receives notice of the delay in
the closing for such Accepted Notes having a maturity date or
dates the same as, or closest to, the Rescheduled Closing Day or
Rescheduled Closing Days (a new alternative investment being
selected by Prudential each time such closing is delayed); "DTS"
means Days to Settlement, i.e., the number of actual days elapsed
from and including the originally scheduled Closing Day with
respect to such Accepted Note (in the case of the first such
payment with respect to such Accepted Note) or from and including
the date of the next preceding payment (in the case of any
subsequent delayed delivery fee payment with respect to such
Accepted Note) to but excluding the date of such payment; and
"PA" means Principal Amount, i.e., the principal amount of the
Accepted Note for which such calculation is being made. In no
case shall the Delayed Delivery Fee be less than zero. Nothing
contained herein shall obligate any Purchaser to purchase any
Accepted Note on any day other than the Closing Day for such
Accepted Note, as the same may be rescheduled from time to time
in compliance with paragraph 2H.
2I(3) Cancellation Fee -- If the Company at any time
notifies Prudential in writing that the Company is canceling the
closing of the purchase and sale of any Accepted Note, or if
Prudential notifies the Company in writing under the
circumstances set forth in the last sentence of paragraph 2H that
the closing of the purchase and sale of such Accepted Note is to
be canceled, or if the closing of the purchase and sale of such
Accepted Note is not consummated on or prior to the last day of
the Issuance Period (the date of any such notification, or the
last day of the Issuance Period, as the case may be, being the
"Cancellation Date"), the Company will pay Prudential in
immediately available funds an amount (the "Cancellation Fee")
calculated as follows:
PI X PA
where "PI" means Price Increase, i.e., the quotient (expressed in
decimals) obtained by dividing (a) the excess of the ask price
(as determined by Prudential) of the Hedge Treasury Note(s) on
the Cancellation Date over the bid price (as determined by
Prudential) of the Hedge Treasury Notes(s) on the Acceptance Day
for such Accepted Note by (b) such bid price; and "PA" has the
meaning specified in paragraph 2I(2). The foregoing bid and ask
prices shall be as reported by Telerate Systems, Inc. (or, if
such data for any reason ceases to be available through Telerate
Systems, Inc., any publicly available source of similar market
data). Each price shall be based on a U.S. Treasury security
having a par value of $100.00 and shall be rounded to the second
decimal place. In no case shall the Cancellation Fee be less
than zero.
3. CONDITIONS OF CLOSING. The obligation of any
Purchaser to purchase and pay for any Accepted Notes is subject
to the satisfaction, on or before the Closing Day for such
Accepted Notes, of the following conditions:
3A. Certain Documents. Such Purchaser shall have
received the following, each dated the date of the applicable
Closing Day:
(i) The Accepted Note(s) to be purchased by such
Purchaser.
(ii) Certified copies of the resolutions of the Board
of Directors of the Company approving this Agreement and the
Accepted Notes, and of all documents evidencing other
necessary corporate action and governmental approvals, if
any, with respect to this Agreement and the Accepted Notes;
or for any Closing Day other than the Initial Closing Day, a
certificate of the Secretary or an Assistant Secretary of
the Company stating that such resolutions remain in effect.
(iii) A certificate of the Secretary or an
Assistant Secretary of the Company certifying the names and
true signatures of the officers of the Company authorized to
sign this Agreement and the Accepted Notes and the other
documents to be delivered hereunder; or for any Closing Day
other than the Initial Closing Day, a certificate of the
Secretary or an Assistant Secretary of the Company stating
that the information in such certificate continues to be
true and correct.
(iv) Certified copies of the Certificate of
Incorporation and By-laws of the Company; or a certificate
of the Secretary or an Assistant Secretary of the Company
stating that the Certificate of Incorporation and bylaws of
the Company have not changed since last delivered pursuant
to this Agreement.
(v) A favorable opinion of Xxxxx Xxxx, special counsel
to the Company satisfactory to such Purchaser and
substantially in the form of Exhibit D attached hereto and
as to such other matters as such Purchaser may reasonably
request. The Company hereby directs each such counsel to
deliver such opinion, agrees that the issuance and sale of
any Accepted Notes will constitute a reconfirmation of such
direction, and understands and agrees that each Purchaser
receiving such an opinion will and is hereby authorized to
rely on such opinion.
(vi) A good standing certificate for the Company from
the Secretary of State of Delaware dated of a recent date
and such other evidence of the status of the Company as
Prudential may reasonably request.
(vii) On the Initial Closing Day only, certified
copies of Requests for Information or Copies (Form UCC-11)
or equivalent reports listing all effective financing
statements which name the Company or any Subsidiary (under
its present name and previous names) as debtor and which are
filed in the offices of the Secretaries of State of Kansas,
California, Missouri, New York, North Carolina and Ohio
together with copies of such financing statements.
(viii) On each Closing Day, other than the Initial
Closing Day, a certificate of an Authorized Officer of the
Company certifying the interest rate and maturity date for
the Accepted Notes to be issued on such Closing Day.
(ix) Additional documents or certificates with respect
to legal matters or corporate or other proceedings related
to the transactions contemplated hereby as may be reasonably
requested by such Purchaser.
3B. Opinion of Purchaser's Special Counsel. Such
Purchaser shall have received from Xxxxxx X. Xxxxxxx, Assistant
General Counsel of Prudential or such other counsel, who is
acting as special counsel for it in connection with this transac-
tion, a favorable opinion satisfactory to such Purchaser as to
such matters incident to the matters herein contemplated as it
may reasonably request.
3C. Representations and Warranties; No Default. The
representations and warranties contained in paragraph 8 shall be
true on and as of such Closing Day, except to the extent of
changes caused by the transactions herein contemplated; there
shall exist on such Closing Day no Event of Default or Default;
and the Company shall have delivered to such Purchaser an
Officer's Certificate, dated such Closing Day, to both such
effects.
3D. Purchase Permitted by Applicable Laws. The
purchase of and payment for the Accepted Notes to be purchased by
such Purchaser on the terms and conditions herein provided
(including the use of the proceeds of such Notes by the Company)
shall not violate any applicable law or governmental regulation
(including, without limitation, Section 5 of the Securities Act
or Regulation G or X of the Board of Governors of the Federal
Reserve System) and shall not subject such Purchaser to any tax,
penalty, liability or other onerous condition under or pursuant
to any applicable law or governmental regulation, and such
Purchaser shall have received such certificates or other evidence
as it may request to establish compliance with this condition.
3E. Legal Matters. Counsel for such Purchaser,
including any special counsel for the Purchasers retained in
connection with the purchase and sale of such Accepted Notes,
shall be satisfied as to all legal matters relating to such
purchase and sale, and such Purchaser shall have received from
such counsel favorable opinions as to such legal matters as it
may request.
3F. Proceedings. All corporate and other proceedings
taken or to be taken in connection with the transactions
contemplated hereby and all documents incident thereto shall be
satisfactory in substance and form to such Purchaser, and it
shall have received all such counterpart originals or certified
or other copies of such documents as it may reasonably request.
3G. Payment of Fees. The Company shall have paid to
Prudential any fees due it pursuant to or in connection with this
Agreement, including any Facility Fee or any Delayed Delivery
Fee.
4. PREPAYMENTS. The Notes shall be subject to
prepayment with respect to any scheduled prepayments set forth in
such Notes as provided in paragraph 4A and with respect to the
optional prepayments permitted by paragraph 4B.
4A. Scheduled Prepayments. The Notes of each Series
shall be subject to scheduled prepayments, if any, set forth in
the Notes of such Series.
4B. Optional Prepayment With Yield-Maintenance Amount.
The Notes of each Series shall be subject to prepayment, in whole
at any time or from time to time in part (in amounts of at least
$1,000,000 and in integrals of $100,000), at the option of the
Company, at 100% of the principal amount so prepaid plus interest
thereon to the prepayment date and the Yield-Maintenance Amount,
if any, with respect to each such Note. Any partial prepayment
of a Series of Notes pursuant to this paragraph 4B shall be
applied in satisfaction of scheduled payments of principal of the
Notes in such Series in inverse order of their scheduled due
dates.
4C. Notice of Optional Prepayment. The Company shall
give the holder of each Note to be prepaid pursuant to paragraph
4B irrevocable written notice of such prepayment not less than 10
Business Days prior to the prepayment date, specifying such
prepayment date and the aggregate principal amount of the Notes
of the same Series as such Note to be prepaid on such date,
identifying each Note held by such holder, and the principal
amount of each such Note, to be prepaid on such date and stating
that such prepayment is to be made pursuant to paragraph 4B.
Notice of prepayment having been given as aforesaid, the
principal amount of the Notes specified in such notice, together
with interest thereon to the prepayment date and together with
the Yield-Maintenance Amount, if any, with respect thereto, shall
become due and payable on such prepayment date. The Company
shall, on or before the day on which it gives written notice of
any prepayment pursuant to paragraph 4B, give telephonic notice
of the principal amount of the Notes to be prepaid and the
prepayment date to each Significant Holder which shall have
designated a recipient for such notices in the Information
Schedule attached hereto or by notice in writing to the Company.
4D. Application of Prepayments. Upon any partial
prepayment of the Notes of any Series pursuant to paragraph 4A or
4B, the amount so prepaid shall be allocated to all outstanding
Notes of such Series (including, for the purpose of this
paragraph 4D only, all Notes prepaid or otherwise retired or
purchased or otherwise acquired by the Company or any of its
Subsidiaries or Affiliates other than by prepayment pursuant to
paragraph 4A or 4B) in proportion to the respective outstanding
principal amounts thereof.
4E. Retirement of Notes. The Company shall not, and
shall not permit any of its Subsidiaries or Affiliates to, prepay
or otherwise retire in whole or in part prior to their stated
final maturity (other than by prepayment pursuant to paragraph 4A
or 4B or upon acceleration of such final maturity pursuant to
paragraph 7A), or purchase or otherwise acquire, directly or
indirectly, Notes of any Series held by any holder unless the
Company or such Subsidiary or Affiliate shall have offered to
prepay or otherwise retire or purchase or otherwise acquire, as
the case may be, the same proportion of the aggregate principal
amount of Notes of such Series held by each other holder of Notes
of such Series at the time outstanding upon the same terms and
conditions. Any Notes so prepaid or otherwise retired or
purchased or otherwise acquired by the Company or any of its
Subsidiaries or Affiliates shall not be deemed to be outstanding
for any purpose under this Agreement, except as provided in
paragraph 4D.
5. AFFIRMATIVE COVENANTS. During the Issuance Period
and so long thereafter as any Note is outstanding and unpaid, the
Company covenants as follows:
5A. Financial Statements. The Company covenants that it will
deliver to each Significant Holder in quadruplicate:
(i) as soon as practicable and in any event within 45 days after
the end of each quarterly period (other than the last quarterly period)
in each fiscal year, consolidated statements of income, stockholders'
equity and cash flows of the Company and its Subsidiaries for the period
from the beginning of the current fiscal year to the end of such quarterly
period, and a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarterly period, setting forth in
each case in comparative form figures for the corresponding period in
the preceding fiscal year, all in reasonable detail, prepared in
conformity with GAAP applied on a basis consistent with that of previous
years (except as otherwise stated therein or in the notes thereto, if
any) and satisfactory in form to the Required Holder(s) and certified
by an authorized financial officer of the Company, subject to changes
resulting from year-end adjustments;
(ii) as soon as practicable and in any event within 120 days after
the end of each fiscal year, consolidated statements of income,
stockholders' equity and cash flows of the Company and its Subsidiaries
for such year, and a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year, setting forth in each case in
comparative form corresponding consolidated figures from the preceding
annual audit, all in reasonable detail, prepared in conformity with GAAP
applied on a basis consistent with that of previous years (except as
otherwise stated therein or in the notes thereto, if any) and
satisfactory in form to the Required Holder(s) and reported on by
independent public accountants of recognized national standing selected
by the Company whose report shall be without limitation as to the scope
of the audit and satisfactory in substance to the Required Holder(s);
(iii) promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as it shall
send to its public stockholders and copies of all registration
statements (without exhibits) and all reports which it files with the
Securities and Exchange Commission (or any governmental body or agency
succeeding to the functions of the Securities and Exchange Commission);
(iv) promptly upon receipt thereof, a copy of each other report
submitted to the Company or any Subsidiary by independent accountants in
connection with any annual, interim or special audit made by them of
the books of the Company or any Subsidiary;
(v) immediately upon a Responsible Officer becoming aware of (a)
the occurrence of any Reportable Event (the reporting of which has not
been waived by the PBGC) or any nonexempted "prohibited transaction," as
defined in Sections 406 and 408 of ERISA and Section 4975 of the Code in
connection with any Plan, or any trust created thereunder, (b) any
failure to make a required contribution to a Plan sufficient to give
rise to a lien under Section 302(f) of ERISA, (c) the taking of any
action with respect to a Plan which could result in the requirement
that the Company or any of its Subsidiaries furnish a bond or other
security to the PBGC or such Plan, or (d) the occurrence of any event
with respect to any Plan which could result in the incurrence by the
Company or any of its Subsidiaries of any material liability, fine or
penalty, or in any material increase in the contingent liability of
the Company or any of its Subsidiaries with respect to any post
retirement welfare plan (as defined in Section 3(1) of ERISA) benefit,
a written notice specifying the nature thereof, what action the Company
or such Subsidiary is taking or proposes to take with respect thereto
and, when known, any action taken by the Internal Revenue Service or the
PBGC with respect thereto; and
(vi) with reasonable promptness, such other financial or other
information relating to the business and properties of the Company and
of any of its Subsidiaries, including without limitation consolidating
financial statements of the Company and its Subsidiaries, financial
statements and other reports filed with any governmental department,
bureau, commission or agency as such Significant Holder may reasonably
request; provided that the Company need not furnish consolidating
financial statements other than those prepared in the ordinary
course of its business.
Together with each delivery of financial statements required by clauses (i)
and (ii) above, the Company will deliver to each Significant Holder an
Officer's Certificate demonstrating (with computations in reasonable detail)
compliance by the Company and its Subsidiaries with the provisions of
paragraphs 6A, 6B, 6C, 6D, 6E, 6F and 6L, stating that there exists no Event
of Default or Default, or, if any Event of Default or Default exists,
specifying the nature and period of existence thereof and what action the
Company proposes to take with respect thereto and giving, in the event of the
formation or acquisition of a Subsidiary during the preceding fiscal period,
the name of such Subsidiary, its jurisdiction of incorporation and a brief
description of its business, together with, in the case of such an
acquisition, a certificate of a principal financial officer of the Company
showing compliance with paragraph 6H(2).
Together with each delivery of financial statements required by clause
(ii) above, the Company will deliver to each Significant Holder a certificate
of such accountants stating that, in making the audit necessary for their
report on such financial statements, they have obtained no knowledge of any
Event of Default or Default, or, if they have obtained knowledge of any
Event of Default or Default, specifying the nature and period of existence
thereof. Such accountants, however, shall not be liable to anyone by reason
of their failure to obtain knowledge of any Event of Default or Default
which would not be disclosed in the course of an audit conducted in
accordance with generally accepted auditing standards.
The Company also covenants that immediately after any Responsible
Officer obtains knowledge of an Event of Default or Default, it will deliver
to each Significant Holder an Officer's Certificate specifying the nature
and period of existence thereof and what action the Company proposes to take
with respect thereto.
5B. Information Required by Rule 144A. The Company covenants that
it will, upon the request of the holder of any Note, provide such holder,
and any qualified institutional buyer designated by such holder, such
financial and other information as such holder may reasonably determine to
be necessary in order to permit compliance with the information requirements
of Rule 144A under the Securities Act in connection with the resale of Notes,
except at such times as the Company is subject to the reporting requirements
of section 13 or 15(d) of the Exchange Act. For the purpose of this
paragraph 5B, the term "qualified institutional buyer" shall have the meaning
specified in Rule 144A under the Securities Act.
5C. Inspection of Property. The Company covenants that it will
permit any Person designated by any Significant Holder in writing, to visit
and inspect any of the properties of the Company and its Subsidiaries, to
examine the corporate books and financial records of the Company and its
Subsidiaries and make copies thereof or extracts therefrom and to discuss
the affairs, finances and accounts of any of such corporations with the
principal officers of the Company and its independent public accountants,
all at such reasonable times and as often as such Significant Holder may
reasonably request and in each case only in connection with such Significant
Holder's investment in the Notes.
5D. Covenant to Secure Note Equally. The Company covenants that,
if it or any Subsidiary shall create or assume any Lien upon any of its
property or assets, whether now owned or hereafter acquired, other than
Liens permitted by the provisions of paragraph 6G (unless prior written
consent to the creation or assumption thereof shall have been obtained
pursuant to paragraph 11C), it will make or cause to be made effective
provision whereby the Notes will be secured by such Lien equally and ratably
with any and all other Indebtedness thereby secured so long as any such
other Indebtedness shall be so secured.
5E. To Keep Books. The Company will, and will cause each of its
Subsidiaries to, at all times keep proper books of records and account in
which full, true and correct entries will be made of its transactions in
accordance with GAAP.
5F. Payment of Taxes; Corporate Existence; Maintenance of
Properties. The Company covenants that it will, and will cause each of its
Subsidiaries to:
(i) pay and discharge promptly all taxes, assessments and other
governmental charges or levies imposed upon it, its income or profits
or any of its properties or assets before any penalty or interest
accrues thereon, as well as all claims and liabilities of any kind
(including without limitation claims and liabilities for labor,
materials and supplies) which, if unpaid, might by law become a Lien
upon its property, prior to the time and when any penalty or fine
shall be incurred with respect thereto; provided that neither the
Company nor any of its Subsidiaries shall be required to pay any such
tax, assessment, charge, levy or claim if the amount, applicability
or validity thereof shall currently be contested in good faith by
appropriate and prompt proceedings and if the Company or any such
Subsidiary, as the case may be, shall have set aside on its books
reserves in respect thereof (segregated to the extent required by GAAP)
to the extent required by GAAP;
(ii) do all things necessary to preserve and keep in full force
and effect its corporate existence, rights and franchises; provided
that nothing in this paragraph 5F(ii) shall prevent the abandonment
or termination of the corporate existence, rights and franchises of
any Subsidiary if, in the reasonable opinion of the Company, such
abandonment or termination is in the best interest of the Company and
not disadvantageous in any material respect to the holders of the
Notes;
(iii) maintain adequate assets, contracts, licenses, permits
and other governmental approvals and authorizations, operating
authorities, certificates of public convenience, operating certificates,
patents, copyrights, trademarks and trade names, industrial designs
and other intellectual property for it to conduct its business as
heretofore conducted by it and shall promptly notify the holders of the
Notes in writing of any occurrence or event or loss with respect to
any of the foregoing which has or could reasonably be expected to have
a material adverse effect on the business, condition (financial or
other), assets, properties or operations of the Company or any of its
Subsidiaries, or the Company's ability to perform its obligations
under the Notes or the agreement; and
(iv) maintain and keep its properties used or useful in the
conduct of its business in good condition, repair and working order
and supplied with all necessary equipment and make all necessary
repairs, renewals, replacements, betterments and improvements thereof,
all as may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
5G. Insurance. The Company covenants that it will, and will cause
each of its Subsidiaries to, keep adequately insured, by financially sound
and reputable insurers, all property of an insurable nature against loss or
damage (including, without limitation, public liability) of the kinds
customarily insured against by similarly-situated corporations, and carry
such other insurance as is usually carried by corporations engaged in the
same or a similar business similarly situated.
5H. Compliance with Laws. The Company covenants that it will, and
will cause each of its Subsidiaries to, comply in all respects with all
applicable statutes, rules, regulations and orders of any governmental
authorities with respect to the conduct of its business and the ownership
of properties (including, without limitation, all applicable laws relating
to the protection of the environment, equal opportunity and employee
safety), except if the failure to comply could not, as far as the Company
can reasonably foresee, individually or in the aggregate, have a material
adverse effect on the business, results of operations, prospects or condition
(financial or other) of the Company or any of its Subsidiaries.
6. NEGATIVE COVENANTS. During the Issuance Period and so long
thereafter as any Note is outstanding and unpaid, the Company covenants as
follows:
6A. Current Ratio. The Company covenants that it will not suffer
or permit Consolidated Current Assets at any time to be less than one
hundred fifty percent (150%) of Consolidated Current Liabilities.
6B. Tangible Net Worth. The Company covenants that it will not
suffer or permit Consolidated Tangible Net Worth at any time to be less
than the sum of (i) sixty-five million dollars ($65,000,000) plus (ii)
fifty percent (50%) of cumulative Consolidated Net Income earned after
June 30, 1993.
6C. Consolidated Funded Indebtedness. The Company covenants that
it will not suffer or permit the aggregate outstanding balance of
Consolidated Funded Indebtedness at any time to exceed sixty percent (60%)
of Consolidated Total Capitalization. For purposes of this paragraph 6C,
Consolidated Funded Indebtedness shall exclude any fixed sinking fund
payments or other payments or prepayments required to be made within one
(1) year from the date of determination thereof with respect to any
Indebtedness that had an original maturity more than twelve (12) months
from the date of original incurrence, all as determined in accordance
with GAAP.
6D. Consolidated Total Indebtedness. The Company covenants that
it will not suffer or permit the aggregate outstanding balance of
Consolidated Total Indebtedness at any time to exceed two hundred percent
(200%) of Consolidated Tangible Net Worth.
6E. Short-Term Working Capital Indebtedness. For a period of
forty-five (45) consecutive days during the twelve (12) month period
following October 22 of each year, the Company covenants that it will not
and will not permit any Subsidiary to suffer or permit the daily average
outstanding principal balance of its Short-Term Working Capital Indebtedness
to exceed five million dollars ($5,000,000) during such forty-five (45)
day period.
6F. Fixed Charge Coverage. The Company covenants that it will not
suffer to permit, as of the end of any fiscal quarter of the Company,
Consolidated Net Income Available for Fixed Charges for its four (4) most
recent consecutive fiscal quarters (taken as a whole) to be less than two
hundred percent (200%) of the aggregate amount of the Fixed Charges for
such period of four (4) fiscal quarters (taken as a whole).
6G. Liens. The Company covenants that it will not, and will not
permit any of its Subsidiaries to, (i) create, assume, incur, permit or
suffer to exist any Lien on or with respect to, or, whether by transfer
to any Subsidiary or Affiliate or otherwise, subject, or permit any
Subsidiary or Affiliate to subject, any property or assets (real or
personal, tangible or intangible, including, without limitation, any stock
or other securities of a Subsidiary) of the Company or any of its
Subsidiaries, whether now owned or hereafter acquired, or any income or
profits therefrom (whether or not provision is made for the equal and
ratable securing of the Notes in accordance with the provisions of
paragraph 5C) to any Lien, or (ii) own or acquire or agree to acquire any
property or assets (real or personal, tangible or intangible) subject to
any Lien (whether or not provision is made for the equal and ratable
securing of the Notes in accordance with the provision of paragraph 5C);
provided that the foregoing shall not prevent:
(i) Liens listed in Schedule 6G hereto;
(ii) Any Lien created to secure all or any part of the purchase
price of assets acquired by the Company or any of its Subsidiaries
after the date hereof or constructed by or on behalf of the Company
or any of its Subsidiaries after the date hereof, provided that (a)
the principal amount of Indebtedness secured by any such Lien shall
not at any time exceed an amount equal to ninety percent (90%) of the
cost to the Company or its Subsidiaries of the assets so acquired or
constructed, and (b) such Lien shall at all times be confined solely
to the asset or assets so acquired or constructed and, if required by
the terms of the instrument originally creating such Lien, other
property which after the date of this Agreement is an improvement to
or is acquired for specific use in connection with such acquired assets;
(iii) Liens for taxes, assessments or other governmental
charges to the extent not required to be paid by paragraph 5F;
(iv) Materialmen's, merchants', carriers', workers', repairers',
or other like Liens arising in the ordinary course of business to the
extent not required to be paid by paragraph 5F;
(v) Pledges or deposits of cash or marketable securities made
in the ordinary course of business in connection with worker's
compensation laws, unemployment insurance and social security laws;
(vi) Leases or subleases granted to others, easements, rights-of-
way, restrictions and other similar charges or encumbrances, in each
case incidental to, and not interfering with, the ordinary conduct of
the business of the Company or any of its Subsidiaries;
(vii) Liens created by any Subsidiary of the Company as
security for Indebtedness owing to the Company or to another Wholly-
Owned Subsidiary of the Company; and
(viii) Liens arising out of a judgment against the Company or
any of its Subsidiaries for the payment of money not exceeding one
million dollars ($1,000,000) with respect to which an appeal is being
prosecuted and a stay of execution pending such appeal has been secured.
6H. Certain Restrictions Relating to Subsidiaries. (1) The
Company covenants that it will not permit any of its Subsidiaries to:
(i) issue any shares of (or any warrants, rights or options to
acquire shares of) capital stock having a preference as to dividends
or upon liquidation over other shares of such Subsidiary to any Person
other than the Company or a Wholly-Owned Subsidiary; or
(ii) notwithstanding anything to the contrary in this Agreement,
sell, assign, transfer, pledge, dispose of or in any way part with
control of any shares of (or any warrants, rights or options to acquire
shares of) capital stock of another Subsidiary having a preference as
to dividends or upon liquidation over other shares of such other
Subsidiary to any Person other than the Company or a Wholly-Owned
Subsidiary; or
(iii) incur, create or assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness other
than (a) Indebtedness set forth in Schedule 6H hereto, (b)
Indebtedness owing to the Company or another Wholly-Owned Subsidiary,
(c) Indebtedness secured by any Lien permitted under paragraph 6G
and (d) Indebtedness owing by a corporation, which corporation is
acquired by the Company and thereupon becomes a Subsidiary of the
Company, immediately prior to the Company's acquisition of such
corporation, provided that the Indebtedness referred to in clause (d)
of this subdivision (iii) was not created or incurred in conjunction
with or in anticipation or contemplation of such acquisition, and
(e) Capital Lease Obligations, provided further that the indebtedness
referred to in clauses (c) and (e) of this subdivision (iii) shall
at no time exceed $30,000,000 in the aggregate.
(2) The Company covenants that it will not, and will not permit
any of its Subsidiaries to, acquire, directly or indirectly, any stock of
any other corporation which immediately after such acquisition would become
a Subsidiary, unless immediately after giving effect to such acquisition:
(i) the Company, one or more of its Wholly-Owned Subsidiaries, or
the Company and one or more of its Wholly-Owned Subsidiaries shall own,
directly or indirectly, all outstanding capital stock of such
corporation having any preference as to dividends or upon liquidating
over other shares of such corporation, and any and all rights, options
and warrants to acquire any such preference stock; and
(ii) no Default or Event of Default shall have occurred and be
continuing.
6I. Merger, Consolidation, Sale or Lease. The Company covenants
that it will not, and will not permit any of its Subsidiaries to, (i)
directly or indirectly, sell, assign, lease, transfer or otherwise dispose
of more than twenty percent (20%) of the assets of the Company and its
Subsidiaries on a consolidated basis (including without limitation shares
of stock of Subsidiaries and any warrants, rights or options to acquire
such shares of stock; it being understood that in the case of dispositions
of any such equity securities of a Subsidiary (even if less than 100% of
such securities held by the Company), compliance with the foregoing twenty
percent (20%) limitation will be calculated based on the value of 100%
of the assets of such Subsidiary on an unconsolidated basis determined
in accordance with GAAP and on the assumption that 100% of such
Subsidiary's securities have been disposed of regardless of the percentage
of such Subsidiaries' securities actually disposed of) during any twelve
(12) month period; or (ii) consolidate with or merge into any Person or
permit any Person to merge into it, unless the Company survives the
consummation of any such transaction; and in the case of a transaction
contemplated by clause (i) or (ii) of this paragraph 6I, at the time of
such transaction, and immediately after giving effect thereto, no Default
or Event of Default shall have occurred and be continuing.
6J. Transactions with Affiliates. The Company covenants that
it will not, and will not permit any of its Subsidiaries to, enter into
or permit to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property, the rendering of any
service or the making of any loan) with any Affiliate of the Company or
any of its Subsidiaries except in the ordinary course of and pursuant to
the reasonable requirements of the business of the Company or such
Subsidiary, as the case may be, and upon fair and reasonable terms which
are not less favorable to the Company or such Subsidiary, as the case
may be, than those which might be obtained in an arm's-length transaction
at the time from Persons which are not an Affiliate of the Company or any
of its Subsidiaries. Notwithstanding the provisions of this paragraph 6J,
any investments made by the Company in any of its Subsidiaries or by any
such Subsidiary in the Company otherwise permitted to be made pursuant to
paragraph 6K shall not be deemed to violate this paragraph 6J.
6K. Investments. The Company covenants that it will not, and
will not permit any of its Subsidiaries to, make any investment or acquire
or hold any interest in any Person, whether payment therefor is made in
cash or capital stock of the Company, and whether such investment is by
acquisition of stock or Indebtedness, or by loan, advance, transfer of
property, capital contribution, extension of credit, guaranty or
otherwise becoming liable (contingently or otherwise) in respect of the
Indebtedness of any Person, or otherwise, except:
(i) investments in direct obligations issued by the United States
of America or obligations of any instrumentality or agency thereof
payment of the principal and interest of which is unconditionally
guaranteed by the United States of America and maturing not more
than one (1) year from the date of acquisition thereof;
(ii) investments in negotiable certificates of deposit maturing
within one (1) year of the date of acquisition thereof and issued by
any United States commercial bank that is a member of the Federal
Deposit Insurance Corporation, which bank has capital and surplus
aggregating at least two hundred fifty million dollars ($250,000,000)
and that has been given a senior debt rating of A- or better by
Standard & Poor's Rating Group or A3 or better by Xxxxx'x Investors
Service, Inc.;
(iii) investments in commercial paper with an original term of
not in excess of two hundred seventy (270) days which, at the date of
acquisition, has been given the highest credit rating accorded by each
of Standard & Poor's Rating Group and Xxxxx'x Investors Service, Inc.;
(iv) investments in money market mutual funds that have total
assets in excess of two and one-half billion dollars ($2,500,000,000);
(v) investments in tax-exempt securities rated "A" or better by
Standard & Poor's Rating Group or Xxxxx'x Investors Service, Inc.;
(vi) investments not otherwise permitted by this paragraph 6K and
previously consented to in writing by the holders of the Notes;
(vii) investments in corporations all of the capital stock of
which is owned by the Company; and
(viii) investments not otherwise permitted by this paragraph
6K which in the aggregate do not exceed at any time twenty percent
(20%) of Consolidated Tangible Net Worth.
6L. Restricted Payments. The Company covenants that it will not,
and will not permit any of its Subsidiaries to, directly or indirectly,
during any fiscal year, (i) declare or pay any dividend or make any other
distribution, in cash or otherwise, on any shares of any class of capital
stock of the Company or any of its Subsidiaries (other than dividends
payable to the Company, and other than a dividend or distribution payable in
shares of capital stock of the Company or, as permitted by paragraph 6H,
in shares of capital stock of any such Subsidiary) or (ii) purchase, redeem,
retire by the making of any payment, or otherwise acquire any such shares
(other than treasury stock held by the Company or any such Subsidiary as
of September 9, 1993) or any warrants, options or other rights to acquire
any such shares of stock, unless, immediately after giving effect to such
action, the sum of
(i) the aggregate amount of all such dividends and distributions
declared, paid or made subsequent to June 30, 1993, and
(ii) the aggregate amount of all such purchases, redemptions,
retirements, and acquisitions made subsequent to June 30, 1993,
shall not exceed the sum of
(i) fifteen million dollars ($15,000,000),
(ii) fifty percent (50%) (or minus one hundred percent (100%) in
the case of a deficit) of cumulative Consolidated Net Income earned
subsequent to June 30, 1993, and
(iii) the aggregate amount received by the Company (other than
from its Subsidiaries) as the net cash proceeds of sales of capital
stock of the Company (including treasury stock and debt securities
subsequently converted into or exchanged for capital stock) subsequent
to June 30, 1993.
6M. Sales and Leasebacks. The Company covenants that it will not,
and will not permit any of its Subsidiaries to, enter into any arrangement,
directly or indirectly, with any other Person (other than the Company or
any such Subsidiary) whereby the Company or such Subsidiary shall sell or
transfer any real or personal property, whether now owned or hereafter
acquired, to such other Person and then or thereafter rent, lease as
lessee or repurchase under an extended purchase contract such property
or any part thereof or any other property which the Company or such
Subsidiary, as the case may be, intends to use for substantially the
same purpose or purposes as the property being sold or transferred;
provided that the foregoing shall not apply in respect of (i) property
owned by the Company or any such Subsidiary for a period not exceeding
twelve (12) months; (ii) real property on which substantial fixed
improvements are constructed if such real property is owned by the Company
or any such Subsidiary for a period not exceeding twelve (12) months
after the date of completion of such fixed improvements, it being
understood that for purposes of computing the twelve (12) month period
referred to in clauses (i) and (ii) above, the period of time during which
the Company or any of its Subsidiaries own any item of property shall be
aggregated; and (iii) real property transferred and leased back by the
Company in connection with the issuance of industrial development bonds.
6N. Maintenance of Present Business. The Company covenants that
it will not, and will not permit any of its Subsidiaries to, engage in any
business if, as a result, the general nature of the business which would
then be engaged in by the Company and its Subsidiaries, taken as a whole,
would be substantially changed from the general nature of the business
engaged in by the Company and its Subsidiaries as of September 9, 1993.
7. EVENTS OF DEFAULT.
7A. Acceleration. If any of the following events shall occur and
be continuing for any reason whatsoever (and whether such occurrence shall
be voluntary or involuntary or come about or be effected by operation of
law or otherwise):
(i) the Company defaults in the payment of any principal of, or
Yield-Maintenance Amount payable with respect to, any Note when the same
shall become due, either by the terms thereof or otherwise as herein
provided; or
(ii) the Company defaults in the payment of any interest on any
Note for more than 5 days after the date due; or
(iii) the Company or any Subsidiary defaults (whether as primary
obligor or as guarantor or other surety) in any payment of principal
of or interest on any other obligation for money borrowed (or any
Capital Lease Obligation, any obligation under a conditional sale or
other title retention agreement, any obligation issued or assumed as
full or partial payment for property whether or not secured by a
purchase money mortgage or any obligation under notes payable
or drafts accepted representing extensions of credit) beyond any
period of grace provided with respect thereto, or the Company or any
Subsidiary fails to perform or observe any other agreement, term or
condition contained in any agreement under which any such obligation
is created (or if any other event thereunder or under any such
agreement shall occur and be continuing) and the effect of such
failure or other event is to cause, or to permit the holder or
holders of such obligation (or a trustee on behalf of such holder or
holders) to cause, such obligation to become due (or to be repurchased
by the Company or any Subsidiary) prior to any stated maturity,
provided that the aggregate amount of all obligations as to which
such a payment default shall occur and be continuing or such a
failure or other event causing or permitting acceleration (or resale
to the Company or any Subsidiary) shall occur and be continuing
exceeds $3,000,000; or
(iv) any representation or warranty made by the Company herein or
by the Company or any of its officers in any writing furnished in
connection with or pursuant to this Agreement shall be false in any
material respect on the date as of which made; or
(v) the Company fails to perform or observe any agreement
contained in paragraph 6; or
(vi) the Company fails to perform or observe any other agreement,
term or condition contained herein and such failure shall not be
remedied within 30 days after any Responsible Officer obtains actual
knowledge thereof; or
(vii) the Company or any Subsidiary makes an assignment for the
benefit of creditors or is generally not paying its debts as such
debts become due; or
(viii) any decree or order for relief in respect of the Company
or any Subsidiary is entered under any bankruptcy, reorganization,
compromise, arrangement, insolvency, readjustment of debt, dissolution
or liquidation or similar law, whether now or hereafter in effect
(herein called the "Bankruptcy Law"), of any jurisdiction; or
(ix) the Company or any Subsidiary petitions or applies to any
tribunal for, or consents to, the appointment of, or taking possession
by, a trustee, receiver, custodian, liquidator or similar official of
the Company or any Subsidiary, or of any substantial part of the
assets of the Company or any Subsidiary, or commences a voluntary
case under the Bankruptcy Law of the United States or any proceedings
(other than proceedings for the voluntary liquidation and dissolution
of a Subsidiary) relating to the Company or any Subsidiary under the
Bankruptcy Law of any other jurisdiction; or
(x) any such petition or application is filed, or any such
proceedings are commenced, against the Company or any Subsidiary and
the Company or such Subsidiary by any act indicates its approval
thereof, consent thereto or acquiescence therein, or an order,
judgment or decree is entered appointing any such trustee, receiver,
custodian, liquidator or similar official, or approving the petition
in any such proceedings, and such order, judgment or decree remains
unstayed and in effect for more than 30 days; or
(xi) any order, judgment or decree is entered in any proceedings
against the Company decreeing the dissolution of the Company and such
order, judgment or decree remains unstayed and in effect for more than
60 days; or
(xii) any order, judgment or decree is entered in any proceedings
against the Company or any Subsidiary decreeing a split-up of the
Company or such Subsidiary which requires the divestiture of assets
representing a substantial part, or the divestiture of the stock of
a Subsidiary whose assets represent a substantial part, of the
consolidated assets of the Company and its Subsidiaries (determined
in accordance with generally accepted accounting principles) or which
requires the divestiture of assets, or stock of a Subsidiary, which
shall have contributed a substantial part of the consolidated net
income of the Company and its Subsidiaries (determined in accordance
with generally accepted accounting principles) for any of the three
fiscal years then most recently ended, and such order, judgment or
decree remains unstayed and in effect for more than 60 days; or
(xiii) a final judgment in an amount in excess of $2,000,000
is rendered against the Company or any Subsidiary and, within 60 days
after entry thereof, such judgment is not discharged or execution
thereof stayed pending appeal, or within 60 days after the expiration
of any such stay, such judgment is not discharged; or
(xiv) the Company or any ERISA Affiliate, in its capacity as
an employer under a Multiemployer Plan, makes a complete or partial
withdrawal from such Multiemployer Plan resulting in the incurrence
by such withdrawing employer of a withdrawal liability in an amount
exceeding $1,000,000; the Company or any other Person shall institute
any steps to terminate a Plan if as a result of such termination
the Company or any of its Subsidiaries could be required to make a
contribution to or on account of such Plan, or could incur a liability
or obligation to such Plan, in excess of $1,000,000; a contribution
failure shall occur with respect to any Plan sufficient to give rise
to a lien under section 302(f) of ERISA; the Company or any of its
Subsidiaries shall become subject to any excise tax on account of,
or otherwise incur any material liability as a result of, engaging
in any nonexempted "prohibited transaction," as defined in sections
406 and 408 of ERISA and section 4975 of the Code; or any Plan shall
incur any "accumulated funding deficiency," as defined in section 302
of ERISA, in an amount in excess of $1,000,000, whether or not waived;
then (a) if such event is an Event of Default specified in clause (viii),
(ix) or (x) of this paragraph 7A with respect to the Company, all of the
Notes at the time outstanding shall automatically become immediately due
and payable at par together with interest accrued thereon, without
presentment, demand, protest or notice of any kind, all of which are
hereby waived by the Company, and (b) if such event is not an Event of
Default specified in clause (viii), (ix) or (x) of this paragraph 7A with
respect to the Company, the Required Holder(s) of the Notes of any Series
may at its or their option by notice in writing to the Company, declare
all of the Notes of such Series to be, and all of the Notes of such
Series shall thereupon be and become, immediately due and payable
together with interest accrued thereon and together with the Yield-
Maintenance Amount, if any, with respect to each Note of such Series,
without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Company, provided that the Yield-
Maintenance Amount, if any, with respect to each Note shall be due
and payable upon any declaration pursuant to this paragraph 7A only if
(I) the event whose occurrence permits such declaration is an Event of
Default specified in any of clauses (i) to (vi), inclusive, or clauses
(xiii) or (xiv) of this xxxxxxxxx 0X, (XX) the Required Holders of the
Notes of any Series (whether or not of the same Series as the Notes the
maturity of which shall have been accelerated by such declaration) shall
have given to the Company, at least 10 Business Days before such
declaration, written notice stating its or their intention to declare or
join in declaring the Notes held by such Required Holders (or all of the
Notes of such Series) to be immediately due and payable and identifying
one or more such Events of Default whose occurrence on or before the
date of such notice permits such declaration, and (III) one or more of
the Events of Default so identified shall be continuing at the time of
such declaration.
7B. Other Remedies. If any Event of Default or Default shall
occur and be continuing, the holder of any Note may proceed to protect and
enforce its rights under this Agreement and such Note by exercising such
remedies as are available to such holder in respect thereof under
applicable law, either by suit in equity or by action at law, or both,
whether for specific performance of any covenant or other agreement
contained in this Agreement or in aid of the exercise of any power granted
in this Agreement. No remedy conferred in this Agreement upon the holder
of any Note is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to every
other remedy conferred herein or now or hereafter existing at law or in
equity or by statute or otherwise.
8. REPRESENTATIONS, COVENANTS AND WARRANTIES. The
Company represents, covenants and warrants as follows:
8A. Organization. The Company is a corporation duly organized and
existing in good standing under the laws of the State of Delaware; each
Subsidiary is duly organized and existing in good standing under the laws
of the jurisdiction in which it is incorporated; Schedule 8A hereto
correctly sets forth (i) the name and jurisdiction of the incorporation of
each Subsidiary of the Company and (ii) a statement of the ownership of
each such Subsidiary's stock; the shares of stock of the Subsidiaries
listed in Schedule 8A hereto as owned by the Company or any of its
Subsidiaries are so owned as of the date of this Agreement, free and
clear of all Liens, and all such shares of stock have been duly issued
and are fully paid and non-assessable; the Company has and each of its
Subsidiaries has full power and authority to own its respective properties
and to carry on its respective business as now being conducted; and the
Company is and each Subsidiary is duly qualified as a foreign corporation
to do business and in good standing in every jurisdiction in which the
nature of the respective business conducted or property owned by it
makes such qualification necessary, except where the failure to so qualify
would not have a material adverse effect on the Company and its Subsidiaries.
8B. Financial Statements. The Company has furnished each Purchaser
of any Accepted Notes with the following financial statements, identified by
a principal financial officer of the Company: (i) a consolidated balance
sheet of the Company and its Subsidiaries as at December 31 in each of
the three fiscal years of the Company most recently completed prior to
the date as of which this representation is made or repeated to such
Purchaser (other than fiscal years completed within 90 days prior to such
date for which audited financial statements have not been released) and
consolidated statements of income, stockholders' equity and cash flows of
the Company and its Subsidiaries for each such year, all reported on by
Xxxxxx Xxxxxxxx LLP; and (ii) a consolidated balance sheet of the Company
and its Subsidiaries as at the end of the quarterly period (if any)
most recently completed prior to such date and after the end of such
fiscal year (other than quarterly periods completed within 45 days prior
to such date for which financial statements have not been released) and
the comparable quarterly period in the preceding fiscal year and
consolidated statements of income, stockholders' equity and cash flows for
the periods from the beginning of the fiscal years in which such quarterly
periods are included to the end of such quarterly periods, prepared
by the Company. Such financial statements (including any related
schedules and/or notes), have been prepared in accordance with
generally accepted accounting principles consistently followed throughout
the periods involved and show all liabilities, direct and contingent, of
the Company and its Subsidiaries required to be shown in accordance with
such principles. The balance sheets fairly present the condition of the
Company and its Subsidiaries as at the dates thereof, and the statements
of income, stockholders' equity and cash flows fairly present the results
of the operations of the Company and its Subsidiaries and their cash flows
for the periods indicated. The consolidated balance sheet most recently
delivered by the Company shows all liabilities, direct and contingent, of
the Company and its Subsidiaries required to be shown in accordance with
generally accepted accounting principles. There has been no material
adverse change in the business, condition (financial or otherwise),
operations or (except to the extent disclosed in writing
to the Purchasers of Accepted Notes in the Request for Purchase for such
Accepted Notes with a notation that it is an exception to the "prospects"
representation of this paragraph 8B) prospects of the Company and its
Subsidiaries taken as a whole since the end of the most recent fiscal
year for which such audited financial statements have been furnished.
8C. Actions Pending. There is no action, suit, investigation or
proceeding pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries, or any properties or rights of the
Company or any of its Subsidiaries, by or before any court, arbitrator or
administrative or governmental body which might result in any material
adverse change in the business, condition (financial or otherwise) or
operations of the Company and its Subsidiaries taken as a whole. There is
no action, suit, investigation or proceeding pending or, to the knowledge
of the Company, threatened against the Company or any of its Subsidiaries
which purports to affect the validity or enforceability of this Agreement or
any Note.
8D. Outstanding Indebtedness. Neither the Company nor any of its
Subsidiaries has outstanding any Indebtedness except as permitted by
paragraphs 6C, 6D, 6E or 6H. There exists no default under the provisions
of any instrument evidencing such Indebtedness or of any agreement relating
thereto. Schedule 6H sets forth all Indebtedness for borrowed money of
the Company and its Subsidiaries outstanding on the date hereof.
8E. Title to Properties. The Company has and each of its
Subsidiaries has good and indefeasible title to its respective real
properties (other than properties which it leases) and good title to
all of its other respective properties and assets, including the properties
and assets reflected in the most recent audited balance sheet referred to
in paragraph 8B (other than properties and assets disposed of in the
ordinary course of business), subject to no Lien of any kind except Liens
permitted by paragraph 6G. All leases necessary in any material respect
for the conduct of the respective businesses of the Company and its
Subsidiaries are valid and subsisting and are in full force and effect.
Schedule 6G sets forth all Liens securing Indebtedness of the Company or
its Subsidiaries existing on the date hereof (other than Liens on
equipment securing approximately five hundred thousand dollars ($500,000) of
Xxxxxxxxxxxx).
0X. Taxes. The Company has and each of its Subsidiaries has
filed all Federal, State and other income tax returns which, to the
knowledge of the officers of the Company and its Subsidiaries, are
required to be filed, and each has paid all taxes as shown on such
returns and on all assessments received by it to the extent that such taxes
have become due, except such taxes as are being contested in good faith
by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP. Federal income tax returns of the
Company and its Subsidiaries have been examined and reported on by the
taxing authorities or closed by applicable statutes and satisfied for all
fiscal years prior to and including the fiscal year ended on December 31,
1991. All material tax liabilities of the Company and its Subsidiaries
were adequately provided for as of June 30, 1995 and are now so provided
for on the books of the Company and its Subsidiaries. Neither the Company
nor any of its Subsidiaries nor any Person on behalf of the Company or
any of its Subsidiaries has agreed to extend the time for the assessment
of any material amount of tax.
8G. Conflicting Agreements and Other Matters. Neither the Company
nor any of its Subsidiaries is a party to any contract or agreement or
subject to any charter or other corporate restriction which materially and
adversely affects its business, property or assets, or financial condition.
Neither the execution nor delivery of this Agreement or the Notes, nor
the offering, issuance and sale of the Notes, nor fulfillment of nor
compliance with the terms and provisions hereof and of the Notes will
conflict with, or result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in any violation of, or
result in the creation of any Lien upon any of the properties or assets
of the Company or any of its Subsidiaries pursuant to, the charter or
by-laws of the Company or any of its Subsidiaries, any award of any
arbitrator or any agreement (including any agreement with stockholders),
instrument, order, judgment, decree, statute, law, rule or regulation to
which the Company or any of its Subsidiaries is subject. Neither the
Company nor any of its Subsidiaries is a party to, or otherwise subject to
any provision contained in, any instrument evidencing indebtedness of the
Company or such Subsidiary, any agreement relating thereto or any other
contract or agreement (including its charter) which limits the amount of,
or otherwise imposes restrictions on the incurring of, Indebtedness of
the Company of the type to be evidenced by the Notes except as set forth
in the agreements listed in Schedule 8G attached hereto (as such Schedule
8G may have been modified from time to time by written supplements
delivered by the Company to Prudential in connection with a Request for
Purchase).
8H. Offering of Notes. Neither the Company nor any agent acting
on its behalf has, directly or indirectly, offered the Notes or any similar
security of the Company for sale to, or solicited any offers to buy the
Notes or any similar security of the Company from, or otherwise approached
or negotiated with respect thereto with, any Person other than
institutional investors, and neither the Company nor any agent acting on
its behalf has taken or will take any action which would subject the
issuance or sale of the Notes to the provisions of section 5 of the
Securities Act or to the provisions of any securities or Blue Sky law of
any applicable jurisdiction.
8I. Use of Proceeds. The proceeds of the Series A Notes will be
used to refinance existing bank or secured indebtedness and for general
corporate purposes. None of the proceeds of the sale of any Notes will be
used, directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of purchasing or carrying any "margin stock" as
defined in Regulation G (12 CFR Part 207) of the Board of Governors
of the Federal Reserve System ("margin stock") or for the purpose of
maintaining, reducing or retiring any Indebtedness which was originally
incurred to purchase or carry any stock that is then currently a margin
stock or for any other purpose which might constitute the purchase of such
Notes a "purpose credit" within the meaning of such Regulation G, unless
the Company shall have delivered to the Purchaser which is purchasing
such Notes, on the Closing Day for such Notes, an opinion of counsel
satisfactory to such Purchaser stating that the purchase of such Notes
does not constitute a violation of such Regulation G. Neither the Company
nor any agent acting on its behalf has taken or will take any action which
might cause this Agreement or the Notes to violate Regulation G, or any
other regulation of the Board of Governors of the Federal Reserve System
or to violate the Exchange Act, in each case as in effect now or as the
same may hereafter be in effect.
8J. ERISA. No accumulated funding deficiency (as defined in
section 302 of ERISA and section 412 of the Code), whether or not waived,
exists with respect to any Plan (other than a Multiemployer Plan). No
liability to the Pension Benefit Guaranty Corporation has been or is
expected by the Company or any ERISA Affiliate to be incurred with respect
to any Plan (other than a Multiemployer Plan) by the Company, any
Subsidiary or any ERISA Affiliate which is or would be materially adverse
to the business, condition (financial or otherwise) or operations of the
Company and its Subsidiaries taken as a whole. Neither the Company, any
Subsidiary nor any ERISA Affiliate has incurred or presently expects to
incur any withdrawal liability under Title IV of ERISA with respect to
any Multiemployer Plan which is or would be materially adverse to the
business, condition (financial or otherwise) or operations of the Company
and its Subsidiaries taken as a whole. The execution and delivery of this
Agreement and the issuance and sale of the Notes will be exempt from, or
will not involve any transaction which is subject to, the prohibitions of
section 406 of ERISA and will not involve any transaction in connection
with which a penalty could be imposed under section 502(i) of ERISA or a
tax could be imposed pursuant to section 4975 of the Code. The
representation by the Company in the next preceding sentence is made in
reliance upon and subject to the accuracy of the representation of each
Purchaser in paragraph 9B as to the source of funds to be used by it to
purchase any Notes.
8K. Governmental Consent. Neither the nature of the Company or of
any Subsidiary, nor any of their respective businesses or properties, nor
any relationship between the Company or any Subsidiary and any other Person,
nor any circumstance in connection with the offering, issuance, sale or
delivery of the Notes is such as to require any authorization, consent,
approval, exemption or other action by or notice to or filing with any
court or administrative or governmental or regulatory body (other than
routine filings after the Closing Day for any Notes with the Securities
and Exchange Commission and/or state Blue Sky authorities) in connection
with the execution and delivery of this Agreement, the offering, issuance,
sale or delivery of the Notes or fulfillment of or compliance with the
terms and provisions hereof or of the Notes.
8L. Environmental and Other Regulatory Compliance. The Company
and its Subsidiaries and all of their respective properties and facilities
have complied at all times and in all respects with all Federal, State,
local and regional statutes, laws, ordinances and judicial or administrative
orders, judgments, rulings and regulations relating to protection of the
environment or otherwise applicable to the operation of the Company's and
its Subsidiaries' respective businesses, including, without limitation,
relating to equal opportunity and employee safety, except, in any such
case, where failure to comply would not result in a material adverse
effect on the business, condition (financial or otherwise) or operations
of the Company and its Subsidiaries taken as a whole.
8M. Disclosure. Neither this Agreement nor any other document,
certificate or statement furnished to any Purchaser by or on behalf of the
Company in connection herewith contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements contained herein and therein not misleading. To the best
knowledge of the Company, there is no fact peculiar to the Company or any
of its Subsidiaries which materially adversely affects or in the future
may (so far as the Company can now foresee) materially adversely affect
the business, property or assets or financial condition of the Company or
any of its Subsidiaries and which has not been set forth in this Agreement.
8N. Licenses. The Company and its Subsidiaries own and possess (or
are licensed or otherwise have the full right to use) all trademarks, service
marks, trade names, copyrights, patents, technology, know-how and processes,
governmental licenses, franchises, certificates, consents, permits and
approvals necessary to enable them to carry on their respective business
in all material respects as now conducted and to own and operate the
properties used in their business as now owned and operated, without known
conflict with the rights of others. All such trademarks, service names,
trade names, copyrights, patents, licenses, franchises, certificates,
consents, permits and approvals are valid and subsisting, and the
consummation of transactions contemplated by this Agreement will not
alter or impair in any material respect any of such rights of the Company
or its Subsidiaries. Neither the Company nor any of its Subsidiaries has
received any notice of infringement of or conflict with asserted rights
of others with respect to any trademark, service xxxx, trade name,
copyright or license which either alone or in the aggregate, might
reasonably be expected to materially adversely affect the business,
results of operations, prospects or condition (financial or other) of the
Company or any of its Subsidiaries.
8O. Investment Company Act. Neither the Company nor any of its
Subsidiaries is an "investment company," or a Person "controlled" by an
"investment company," within the meaning of the Investment Company Act of
1940, as amended.
8P. Hostile Tender Offers. None of the proceeds of the sale of
any Notes will be used to finance a Hostile Tender Offer.
9. REPRESENTATIONS OF THE PURCHASERS.
Each Purchaser represents as follows:
9A. Nature of Purchase. Such Purchaser is not acquiring the Notes
purchased by it hereunder with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act, provided that
the disposition of such Purchaser's property shall at all times be and
remain within its control. Each Purchaser is an "accredited investor" as
such term is defined in Rule 501(a) of Regulation D promulgated under the
Securities Act. Prudential's principal office is in New Jersey.
9B. Source of Funds. No part of the funds used by such Purchaser
to pay the purchase price of the Notes purchased by such Purchaser hereunder
constitutes assets allocated to any separate account maintained by such
Purchaser in which any employee benefit plan, other than employee benefit
plans identified on a list which has been furnished by such Purchaser to
the Company, participates to the extent of 10% or more. For the purpose
of this paragraph 9B, the terms "separate account" and "employee benefit
plan" shall have the respective meanings specified in section 3 of
ERISA.
10. DEFINITIONS. For the purpose of this Agreement, the terms
defined in paragraphs 1 and 2 shall have the respective meanings specified
therein, and the following terms shall have the meanings specified with
respect thereto below (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
10A. Yield-Maintenance Terms.
"Called Principal" shall mean, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to paragraph 4B or
is declared to be immediately due and payable pursuant to paragraph 7A,
as the context requires.
"Designated Spread" shall mean 0% in the case of each Series A Note
and 0% in the case of each Note of any other Series unless the Confirmation
of Acceptance with respect to the Notes of such Series specifies a different
Designated Spread in which case it shall mean, with respect to each Note
of such Series, the Designated Spread so specified.
"Discounted Value" shall mean, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective scheduled
due dates to the Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount factor
(applied on the same periodic basis as that on which interest on such Note
is payable) equal to the Reinvestment Yield with respect to such Called
Principal.
"Reinvestment Yield" shall mean, with respect to the Called
Principal of any Note, the Designated Spread over the yield to maturity
implied by (i) the yields reported, as of 10:00 A.M. (New York City local
time) on the Business Day next preceding the Settlement Date with respect
to such Called Principal, on the display designated as "Page 678" on the
Telerate Service (or such other display as may replace Page 678 on the
Telerate Service) for actively traded U.S. Treasury securities having a
maturity equal to the Remaining Average Life of such Called Principal as of
such Settlement Date, or if such yields shall not be reported as of such time
or the yields reported as of such time shall not be ascertainable, (ii) the
Treasury Constant Maturity Series yields reported, for the latest day for
which such yields shall have been so reported as of the Business Day next
preceding the Settlement Date with respect to such Called Principal, in
Federal Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a constant
maturity equal to the Remaining Average Life of such Called Principal as of
such Settlement Date. Such implied yield shall be determined, if necessary,
by (a) converting U.S. Treasury xxxx quotations to bond-equivalent yields
in accordance with accepted financial practice and (b) interpolating
linearly between yields reported for various maturities.
"Remaining Average Life" shall mean, with respect to the Called
Principal of any Note, the number of years (calculated to the nearest
one-twelfth year) obtained by dividing (i) such Called Principal into (ii)
the sum of the products obtained by multiplying (a) each Remaining
Scheduled Payment of such Called Principal (but not of interest thereon)
by (b) the number of years (calculated to the nearest one-twelfth year)
which will elapse between the Settlement Date with respect to such Called
Principal and the scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" shall mean, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due on or after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date.
"Settlement Date" shall mean, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to paragraph 4B or is declared to be immediately due and payable
pursuant to paragraph 7A, as the context requires.
"Yield-Maintenance Amount" shall mean, with respect to any Note,
an amount equal to the excess, if any, of the Discounted Value of the Called
Principal of such Note over the sum of (i) such Called Principal plus (ii)
interest accrued thereon as of (including interest due on) the Settlement
Date with respect to such Called Principal. The Yield-Maintenance Amount
shall in no event be less than zero.
10B. Other Terms.
"Acceptance" shall have the meaning specified in paragraph 2F.
"Acceptance Day" shall have the meaning specified in paragraph 2F.
"Acceptance Window" shall have the meaning specified in paragraph 2F.
"Accepted Note" shall have the meaning specified in paragraph 2F.
"Affiliate" of any Person shall mean a Person which, directly or
indirectly, controls or is controlled by or is under common control with
such Persons or which beneficially owns or holds or has the power to direct
the voting power of ten percent (10%) or more of any class of voting stock
of such Person or which has ten percent (10%) or more of its voting stock
(or, in the case of a Person which is not a corporation, ten percent (10%)
or more of its equity interest) beneficially owned or held, directly or
indirectly, by such Person. For purposes of this definition, "control" means
the power to direct the management and policies of a Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the term "controlled" has a meaning correlative to the
foregoing. No Person which is an institution shall be deemed to be an
Affiliate of the Company or any of its Subsidiaries solely by reason of
ownership of the Notes or other securities issued in exchange for the Notes
or by reason of having the benefits of any agreements or covenants of the
Company or any of its Subsidiaries contained in this Note, any other Note
or in the Agreement and no Subsidiary of the Company shall be deemed to
be an Affiliate of the Company.
"Authorized Officer" shall mean (i) in the case of the Company,
its chief executive officer, its chief financial officer, any vice president
of the Company designated as an "Authorized Officer" of the Company in the
Information Schedule attached hereto or any vice president of the Company
designated as an "Authorized Officer" of the Company for the purpose of
this Agreement in an Officer's Certificate executed by the Company's chief
executive officer or chief financial officer and delivered to Prudential,
and (ii) in the case of Prudential, any officer of Prudential designated as
its "Authorized Officer" in the Information Schedule or any officer of
Prudential designated as its "Authorized Officer" for the purpose of this
Agreement in a certificate executed by one of its Authorized Officers.
Any action taken under this Agreement on behalf of the Company by any
individual who on or after the date of this Agreement shall have been
an Authorized Officer of the Company and whom Prudential in good faith
believes to be an Authorized Officer of the Company at the time of such
action shall be binding on the Company even though such individual shall
have ceased to be an Authorized Officer of the Company, and any action
taken under this Agreement on behalf of Prudential by any individual who
on or after the date of this Agreement shall have been an Authorized
Officer of Prudential and whom the Company in good faith believes to be an
Authorized Officer of Prudential at the time of such action shall be
binding on Prudential even though such individual shall have ceased to be
an Authorized Officer of Prudential.
"Available Facility Amount" shall have the meaning specified in
paragraph 2A.
"Bankruptcy Law" shall have the meaning specified in clause (viii)
of paragraph 7A.
"Business Day" shall mean any day other than (i) a Saturday or a
Sunday, (ii) a day on which commercial banks in New York City are required
or authorized to be closed and (iii) for purposes of paragraph 2C hereof only,
a day on which Prudential is not open for business.
"Cancellation Date" shall have the meaning specified in paragraph
2I(3).
"Cancellation Fee" shall have the meaning specified in paragraph
2I(3).
"Capital Lease" shall mean at any time any lease of property
(whether real, personal or mixed) which in accordance with GAAP would at
such time be required to be classified and accounted for as a capital lease
on a balance sheet of the lessee.
"Capital Lease Obligation" shall mean at any time the amount of
the obligation of the lessee under a Capital Lease which in accordance
with GAAP would at such time appear as a liability on a balance sheet of
such lessee in respect of such Capital Lease.
"Closing Day" shall mean, with respect to the Series A Notes, the
Initial Closing Day and, with respect to any Accepted Note shall mean the
Business Day specified for the closing of the purchase and sale of such
Note in the Request for Purchase of such Note, provided that (i) if the
Acceptance Day for such Accepted Note is less than five Business Days after
the Company shall have made such Request for Purchase and the Company and
the Purchaser which is obligated to purchase such Note agree on an earlier
Business Day for such closing, the "Closing Day" for such Accepted
Note shall be such earlier Business Day, and (ii) if the closing of the
purchase and sale of such Accepted Note is rescheduled pursuant to
paragraph 2H, the Closing Day for such Accepted Note, for all purposes
of this Agreement except reference to "original Closing Day" in paragraph
2I(2), shall mean the Rescheduled Closing Day with respect to such Closing.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Confidential Information" shall mean any material non-public
information regarding the Company and its Subsidiaries that is provided to
any holder of any Note, any Person who purchases a participation in a Note
and any offeree of a Note or participation therein pursuant to this
Agreement other than information (i) which was publicly known or otherwise
known to such holder, such Person or such offeree at the time of disclosure,
(ii) which subsequently becomes publicly known through no act or omission of
such holder, such Person or such offeree or (iii) which otherwise becomes
known to such holder, such Person or such offeree, other than through
disclosure by the Company or any Subsidiary.
"Confirmation of Acceptance" shall have the meaning specified in
paragraph 2F.
"Consolidated Current Assets" on any date shall mean the total of
all current assets of the Company and its Subsidiaries which would be shown
on a consolidated balance sheet of the Company and its Subsidiaries prepared
in accordance with GAAP as of such date.
"Consolidated Current Indebtedness" shall mean, as of any particular
time and after eliminating inter-company items, all Current Indebtedness of
the Company and its Subsidiaries, all as consolidated in accordance with GAAP.
"Consolidated Current Liabilities" on any date shall mean the total
of all current liabilities of the Company and its Subsidiaries which would
be shown on a consolidated balance sheet of the Company and its Subsidiaries
prepared in accordance with GAAP as of such date, and shall include without
limitation the items listed in clause (ii) of the definition of Current
Indebtedness.
"Consolidated Funded Indebtedness" shall mean, as of any particular
time and after eliminating inter-company items, all Funded Indebtedness of
the Company and its Subsidiaries, all as consolidated in accordance with GAAP.
"Consolidated Net Income" shall mean, with respect to any period,
the Net Income of the Company and its Subsidiaries for such period, after
eliminating inter-company items, all as consolidated and determined in
accordance with GAAP.
"Consolidated Net Income Available for Fixed Charges" shall mean
with respect to any period, Consolidated Net Income (before income taxes)
for such period plus the amount of Fixed Charges for such period.
"Consolidated Stockholders' Equity" shall mean, as of any particular
time, the aggregate amount of equity capital and surplus of the Company and
its Subsidiaries appearing on a consolidated balance sheet of the Company
and its Subsidiaries, less the cost of any treasury shares included on such
balance sheet, prepared in accordance with GAAP.
"Consolidated Tangible Net Worth" shall mean, as of any particular
time and after eliminating inter-company items, Consolidated Stockholders'
Equity less the sum (without duplication) of the aggregate of all amounts
that appear on the asset side of such balance sheet and are attributable
to assets which would be treated as intangibles under GAAP, including,
without limitation, all such items as goodwill, trademarks, trade
names, brand names, copyrights, patents, patent applications, licenses,
franchises, permits and rights with respect to the foregoing.
"Consolidated Total Capitalization" shall mean, as of any particular
time, the sum of Consolidated Funded Indebtedness plus Consolidated
Stockholders' Equity.
"Consolidated Total Indebtedness" shall mean, as of any particular
time, the sum of Consolidated Funded Indebtedness and Consolidated Current
Indebtedness of the Company and its Subsidiaries.
"Current Indebtedness" shall mean, as of any particular time and
after eliminating inter-company items, any Indebtedness of the Company or
any of its Subsidiaries maturing on demand or within not more than twelve
(12) months from the date of determination thereof, including without
limitation Indebtedness incurred under a commercial paper program or other
"short-term" borrowing facility, but excluding (i) any such Indebtedness
which is renewable or extendible at the option of the Company or any of
its Subsidiaries to a date more than twelve (12) months after the date of
determination of such Current Indebtedness, and (ii) any fixed sinking
fund payments or other payments or prepayments required to be made within
one (1) year from the date of determination thereof with respect to any
Indebtedness that had an original maturity more than twelve (12) months
from the date of original incurrence, all as determined in accordance
with GAAP.
"Delayed Delivery Fee" shall have the meaning specified in paragraph
2I(2).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" shall mean any corporation which is a member of
the same controlled group of corporations as the Company within the meaning
of section 414(b) of the Code, or any trade or business which is under
common control with the Company within the meaning of section 414(c) of the
Code.
"Event of Default" shall mean any of the events specified in
paragraph 7A, provided that there has been satisfied any requirement in
connection with such event for the giving of notice, or the lapse of time,
or the happening of any further condition, event or act, and "Default"
shall mean any of such events, whether or not any such requirement has
been satisfied.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Facility" shall have the meaning specified in paragraph 2A.
"Facility Fee" shall have the meaning specified in paragraph 2I(1).
"Fixed Charges" shall mean all amounts deducted in the computation
of Consolidated Net Income on account of (i) Interest Charges on
Consolidated Total Indebtedness, (ii) royalty expense of the Company and
its Subsidiaries as determined in accordance with GAAP, and (iii) rentals
of the Company and its Subsidiaries.
"Funded Indebtedness" shall mean, as of any particular time and
all as determined in accordance with GAAP, all Indebtedness of the Company
or any Subsidiary which does not constitute (i) Current Indebtedness, (ii)
deferred income taxes, (iii) inter-company items, (iv) deferred pension
liabilities, or (v) such other amounts reflected as reserves on the
Company's balance sheet, prepared in accordance with GAAP, as may be
agreed upon in writing by the holders of the Notes.
"GAAP" shall mean generally accepted accounting principles as set
forth in the opinions of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements of the Financial
Accounting Standards Board or in such opinions and statements of such
other entities as shall be approved by a significant segment of the
accounting professions.
"Guarantee" shall mean, with respect to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect
to any indebtedness, lease, dividend or other obligation of another,
including, without limitation, any such obligation directly or indirectly
guaranteed, endorsed (otherwise than for collection or deposit in the
ordinary course of business) or discounted or sold with recourse by such
Person, or in respect of which such Person is otherwise directly or
indirectly liable, including, without limitation, any such obligation in
effect guaranteed by such Person through any agreement (contingent or
otherwise) to purchase, repurchase or otherwise acquire such obligation or
any security therefor, or to provide funds for the payment or discharge of
such obligation (whether in the form of loans, advances, stock purchases,
capital contributions or otherwise), or to maintain the solvency or any
balance sheet or other financial condition of the obligor of such
obligation, or to make payment for any products, materials or supplies or
for any transportation or service, regardless of the non-delivery or
non-furnishing thereof, in any such case if the purpose or intent of such
agreement is to provide assurance that such obligation will be paid or
discharged, or that any agreements relating thereto will be complied with,
or that the holders of such obligation will be protected against loss in
respect thereof. The amount of any Guarantee shall be equal to the
outstanding principal amount of the obligation guaranteed or such lesser
amount to which the maximum exposure of the guarantor shall have been
specifically limited.
"Hedge Treasury Note(s)" shall mean, with respect to any Accepted
Note, the United States Treasury Note or Notes whose duration (as determined
by Prudential) most closely matches the duration of such Accepted Note.
"Hostile Tender Offer" shall mean, with respect to the use of
proceeds of any Note, any offer to purchase, or any purchase of, shares of
capital stock of any corporation or equity interests in any other entity,
or securities convertible into or representing the beneficial ownership of,
or rights to acquire, any such shares or equity interests, if such
shares, equity interests, securities or rights are of a class which is
publicly traded on any securities exchange or in any over-the-counter
market, other than purchases of such shares, equity interests, securities
or rights representing less than 5% of the equity interests or beneficial
ownership of such corporation or other entity for portfolio investment
purposes, and such offer or purchase has not been duly approved by the
board of directors of such corporation or the equivalent governing body
of such other entity prior to the date on which the Company makes the
Request for Purchase of such Note.
"Indebtedness" shall mean as applied to any Person (without
duplication): any obligations and liabilities to any other Person which
under GAAP is shown on the balance sheet as a liability, including without
limitation all debts, Guarantees, claims and indebtedness (contingent,
fixed or other), heretofore, now or from time to time hereafter owing,
due or payable, however evidenced, created, incurred, acquired or owing
and however arising, whether under written or oral agreement, by operation
of law, or otherwise. Indebtedness includes, without limiting the
foregoing, (i) obligations and liabilities of any Person secured by a
Lien upon property owned by such Person, even though such Person has
not assumed or become liable for the payment therefor, (ii) Capital Lease
Obligations, (iii) any obligation of such Person evidenced by bonds,
debentures, notes or other similar debt instruments, (iv) any obligation
of such person on account of deposits or advances (other than as an account
party on an undrawn letter of credit or other obligation incurred in the
ordinary course of business with respect to issuance of insurance policies),
(v) any obligation of such Person for the deferred purchase price of any
property or services, (vi) Guarantees, endorsements of, and any other
contingent obligations in respect of, the acquisition, purchase or
servicing of the indebtedness, liabilities or obligations of any other
person, whether or not for money borrowed and whether or not such
Guarantee, endorsement or obligation is to supply funds to or to purchase
goods or services from such other Person, and (vii) all indebtedness,
liabilities or obligations (whether or not representing money borrowed)
in effect guaranteed by an agreement, contingent or otherwise, to make
a loan, advance or capital contribution to or other investment in
any Person for the purpose of assuring or maintaining a minimum
equity, asset base, working capital or other balance sheet condition
for any date, or to provide funds for the payment of any liability,
dividend or stock liquidation payment, or otherwise to supply funds to
or in any manner invest in any Person for such purpose; provided
that Indebtedness shall not include trade payables or
accrued expenses arising in the ordinary course of business.
"Initial Closing" shall have the meaning specified in paragraph
2H(1).
"Interest Charges" shall mean, with respect to any Indebtedness of
the Company or any of its Subsidiaries for any period, all amounts which
would, in accordance with GAAP, be deducted in computing Consolidated Net
Income for such period on account of interest on such Indebtedness,
including without limitation imputed interest in respect of Capital Lease
Obligations and amortization of debt discount and expense.
"Issuance Period" shall have the meaning specified in paragraph 2B.
"Lien" shall mean any lien, charge, claim, mortgage, pledge,
security interest, hypothecation, assignment for security, deposit
arrangement, encumbrance, lien (statutory or other), or preference or
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any Capital Lease, any agreement
to give a security interest, and the filing of any financing statement
(other than notice filings not perfecting a security interest) under the
Uniform Commercial Code or comparable law of any jurisdiction in respect
of any of the foregoing).
"Multiemployer Plan" shall mean any Plan which is a "multiemployer
plan" (as such term is defined in section 4001(a)(3) of ERISA).
"Net Income" shall mean, with respect to any Person for any period,
the net income (or the net deficit, if expenses and charges exceed revenues
and other proper income credits) for such period determined in accordance
with GAAP; provided that Net Income of the Company and any of its
Subsidiaries shall not include:
(i) the Net Income of any Subsidiary prior to the date it became a
Subsidiary; and
(ii) any gain or loss that is deemed extraordinary in accordance
with GAAP.
"Notes" shall have the meaning specified in paragraph 1.
"Officer's Certificate" shall mean a certificate signed in the name
of the Company by an Authorized Officer of the Company.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor entity performing the same function.
"Person" shall mean and include an individual, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
"Plan" shall mean any "employee pension benefit plan" (as such term
is defined in section 3 of ERISA) which is or has been established or
maintained, or to which contributions are or have been made, by the Company
or any ERISA Affiliate.
"Prudential" shall mean The Prudential Insurance Company of America.
"Prudential Affiliate" shall mean any corporation or other entity
all of the Voting Stock (or equivalent voting securities or interests) of
which is owned by Prudential either directly or through Prudential Affiliates.
"Purchasers" shall mean, with respect to any Accepted Notes the
Persons, either Prudential or a Prudential Affiliate, who is purchasing such
Accepted Notes.
"Request for Purchase" shall have the meaning specified in paragraph
2D.
"Required Holder(s)" shall mean, with respect to the Notes of any
Series, at any time, the holder or holders of at least 66 2/3% of the
aggregate principal amount of the Notes of such Series outstanding at such
time.
"Rescheduled Closing Day" shall have the meaning specified in
paragraph 2H.
"Responsible Officer" shall mean the chief executive officer,
chief operating officer, chief financial officer or chief accounting
officer of the Company or any other officer of the Company involved
principally in its financial administration or its controllership function.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series" shall have the meaning specified in paragraph 1.
"Series A Notes" shall have the meaning specified in paragraph 2H(1).
"Short-Term Working Capital Indebtedness" shall mean Consolidated
Current Indebtedness for borrowed money incurred by the Company and any of
its Subsidiaries for working capital purposes.
"Significant Holder" shall mean (i) Prudential, so long as
Prudential or any Prudential Affiliate shall hold (or be committed under
this Agreement to purchase) any Note, or (ii) any other holder of at least
5% of the aggregate principal amount of the Notes from time to time
outstanding.
"Subsidiary" shall mean, with respect to any Person, (i) any
corporation a number of shares of outstanding stock of which having voting
power to elect a majority of the members of the Board of Directors (or
other governing body) of such corporation (other than stock having
such power only by reason of the happening of a contingency) shall at
the time be owned, directly or indirectly, by a Person, one or more
Subsidiaries of such Person, or by such Persons and one or more of its
Subsidiaries, (ii) any other Person (other than a corporation), including
without limitation a joint venture, in which such Person, one or more
Subsidiaries thereof, or such Person and one or more Subsidiaries
thereof, directly or indirectly, at the date of determination thereof,
has at least majority ownership interest entitled to vote in the election
of directors, managers or trustees thereof (or other Persons performing
similar functions) or (iii) any other Person required to be consolidated
with such Person for tax purposes.
"Transferee" shall mean any direct or indirect transferee of all
or any part of any Note purchased by any Purchaser under this Agreement.
"Voting Stock" shall mean, with respect to any corporation, any
shares of stock of such corporation whose holders are entitled under
ordinary circumstances to vote for the election of directors of such
corporation (irrespective of whether at the time stock of any other class
or classes shall have or might have voting power by reason of the happening
of any contingency).
"Wholly-Owned Subsidiary" shall mean any Subsidiary of the Company
all of the capital stock (other than directors' qualifying shares) of which
is owned directly or indirectly by the Company.
10C. Accounting Principles, Terms and Determinations. All
references in this Agreement to "GAAP" shall be deemed to refer to
generally accepted accounting principles in effect in the United States at
the time of application thereof. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all determinations
with respect to accounting matters hereunder shall be made, and all
unaudited financial statements and certificates and reports as to financial
matters required to be furnished hereunder shall be prepared, in
accordance with GAAP, applied on a basis consistent with the most recent
audited consolidated financial statements of the Company and its
Subsidiaries delivered pursuant to clause (ii) of paragraph 5A or, if
no such statements have been so delivered, the most recent audited
financial statements referred to in clause (i) of paragraph 8B.
11. MISCELLANEOUS.
11A. Note Payments. The Company agrees that, so long as any
Purchaser shall hold any Note, it will make payments of principal of,
interest on, and any Yield-Maintenance Amount payable with respect to,
such Note, which comply with the terms of this Agreement, by wire transfer
of immediately available funds for credit (not later than 12:00 noon,
New York City local time, on the date due) to the account or accounts
of such Purchaser, if any, as are specified in the Information Schedule,
attached hereto, or, in the case of any Purchaser not named in the
Information Schedule or any Purchaser wishing to change the account
specified for it in the Information Schedule, such account or accounts
in the United States as such Purchaser may from time to time designate in
writing, notwithstanding any contrary provision herein or in any Note
with respect to the place of payment. Each Purchaser agrees that, before
disposing of any Note, it will make a notation thereon (or on a schedule
attached thereto) of all principal payments previously made thereon and
of the date to which interest thereon has been paid. The Company agrees
to afford the benefits of this paragraph 11A to any Transferee which
shall have made the same agreement as the Purchasers have made in this
paragraph 11A.
11B. Expenses. The Company agrees, whether or not the transactions
contemplated hereby shall be consummated, to pay, and save Prudential, each
Purchaser and any Transferee harmless against liability for the payment of,
all out-of-pocket expenses arising in connection with such transactions,
including (i) all document production and duplication charges and the fees
and expenses of any special counsel engaged by the Purchasers or any
Transferee in connection with this Agreement, the transactions contemplated
hereby and any subsequent proposed modification of, or proposed consent
under, this Agreement, whether or not such proposed modification shall
be effected or proposed consent granted, provided that the Company shall
only be required to pay the fees and expenses of one counsel for all
holders of the Notes unless all of the holders of each Series of Notes
determine that there is a conflict between the holders of different Series
of Notes, in which event, the Company shall be required to pay for
separate counsel for the holders of each Series of Notes; (ii) the costs and
expenses, including attorneys' fees and reasonable out-of-pocket expenses,
incurred by any Purchaser or any Transferee in enforcing (or determining
whether or how to enforce) any rights under this Agreement or the Notes or
in responding to any subpoena or other legal process or informal
investigative demand issued in connection with this Agreement or the
transactions contemplated hereby or by reason of any Purchaser's or
any Transferee's having acquired any Note, including without limitation
costs and expenses incurred in any bankruptcy case; and (iii) the reasonable
out-of-pocket expenses incurred by any holder of the Notes in connection
with any such modification. The obligations of the Company under this
paragraph 11B shall survive the transfer of any Note or portion thereof or
interest therein by any Purchaser or any Transferee and the payment of any
Note. Payment by the Company of the $20,000 Facility Fee specified in
paragraph 2I (1)(i) shall satisfy the Company's obligation to pay all
document production and duplication charges and the fees and expenses of
any special counsel engaged by the Purchasers in connection with the
preparation, execution and delivery of this Agreement and the issuance
of the Series A Notes.
11C. Consent to Amendments. This Agreement may be amended, and
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, if the Company shall obtain the
written consent to such amendment, action or omission to act, of the
Required Holder(s) of the Notes of each Series except that, (i) with the
written consent of the holders of all Notes of a particular Series, and
if an Event of Default shall have occurred and be continuing, of the holders
of all Notes of all Series, at the time outstanding (and not without such
written consents), the Notes of such Series may be amended or the
provisions thereof waived to change the maturity thereof, to change or
affect the principal thereof, or to change or affect the rate or time of
payment of interest on or any Yield-Maintenance Amount payable with
respect to the Notes of such Series, (ii) without the written consent of the
holder or holders of all Notes at the time outstanding, no amendment to or
waiver of the provisions of this Agreement shall change or affect the
provisions of paragraph 7A or this paragraph 11C insofar as such provisions
relate to proportions of the principal amount of the Notes of any Series,
or the rights of any individual holder of Notes, required with respect to
any declaration of Notes to be due and payable or with respect to any
consent, amendment, waiver or declaration, (iii) with the written consent of
Prudential only, the provisions of paragraph 2 may be amended or waived
(except insofar as any such amendment or waiver would affect any rights or
obligations with respect to the purchase and sale of Notes which shall have
become Accepted Notes prior to such amendment or waiver), and (iv) with
the written consent of all of the Purchasers which shall have become
obligated to purchase Accepted Notes of any Series (and not without
the written consent of all such Purchasers), any of the provisions of
paragraphs 2 and 3 may be amended or waived insofar as such amendment or
waiver would affect only rights or obligations with respect to the purchase
and sale of the Accepted Notes of such Series or the terms and provisions
of such Accepted Notes. Each holder of any Note at the time or
thereafter outstanding shall be bound by any consent authorized by this
paragraph 11C, whether or not such Note shall have been marked to indicate
such consent, but any Notes issued thereafter may bear a notation referring
to any such consent. No course of dealing between the Company and the holder
of any Note nor any delay in exercising any rights hereunder or under any
Note shall operate as a waiver of any rights of any holder of such Note.
As used herein and in the Notes, the term "this Agreement" and references
thereto shall mean this Agreement as it may from time to time be amended
or supplemented.
11D. Form, Registration, Transfer and Exchange of Notes; Lost
Notes. The Notes are issuable as registered notes without coupons in
denominations of at least $250,000, except as may be necessary to reflect
any principal amount not evenly divisible by $250,000. The Company shall
keep at its principal office a register in which the Company shall provide
for the registration of Notes and of transfers of Notes. Upon surrender
for registration of transfer of any Note at the principal office of the
Company, the Company shall, at its expense, execute and deliver one or
more new Notes of like tenor and of a like aggregate principal amount,
registered in the name of such transferee or transferees. At the option
of the holder of any Note, such Note may be exchanged for other Notes
of like tenor and of any authorized denominations, of a like aggregate
principal amount, upon surrender of the Note to be exchanged at the
principal office of the Company. Whenever any Notes are so surrendered
for exchange, the Company shall, at its expense, execute and deliver the
Notes which the holder making the exchange is entitled to receive.
Each installment of principal payable on each installment date upon
each new Note issued upon any such transfer or exchange shall be in the same
proportion to the unpaid principal amount of such new Note as the installment of
principal payable on such date on the Note surrendered for registration of
transfer or exchange bore to the unpaid principal amount of such Note.
No reference need be made in any such new Note to any installment or
installments of principal previously due and paid upon the Note
surrendered for registration of transfer or exchange. Every Note
surrendered for registration of transfer or exchange shall be duly
endorsed, or be accompanied by a written instrument of transfer duly
executed, by the holder of such Note or such holder's attorney duly
authorized in writing. Any Note or Notes issued in exchange for any
Note or upon transfer thereof shall carry the rights to unpaid interest
and interest to accrue which were carried by the Note so exchanged or
transferred, so that neither gain nor loss of interest shall result from
any such transfer or exchange. Upon receipt of written notice from the
holder of any Note of the loss, theft, destruction or mutilation of such
Note and, in the case of any such loss, theft or destruction, upon receipt
of such holder's unsecured indemnity agreement, or in the case of any such
mutilation upon surrender and cancellation of such Note, the Company will
make and deliver a new Note, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Note.
11E. Persons Deemed Owners; Participations. Prior to due
presentment for registration of transfer, the Company may treat the Person
in whose name any Note is registered as the owner and holder of such Note
for the purpose of receiving payment of principal of and interest on, and
any Yield-Maintenance Amount payable with respect to, such Note and for
all other purposes whatsoever, whether or not such Note shall be overdue,
and the Company shall not be affected by notice to the contrary. Subject
to the preceding sentence, the holder of any Note may from time to time
grant participations in all or any part of such Note to any Person on such
terms and conditions as may be determined by such holder in its sole and
absolute discretion, provided that any such participation shall be in a
principal amount of at least $100,000.
11F. Survival of Representations and Warranties; Entire Agreement.
All representations and warranties contained herein or made in writing by
or on behalf of the Company in connection herewith shall survive the
execution and delivery of this Agreement and the Notes, the transfer by
any Purchaser of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any Transferee, regardless
of any investigation made at any time by or on behalf of any Purchaser or
any Transferee. Subject to the preceding sentence, this Agreement, the
Notes and any Confirmation of Acceptance executed by the Company and the
Purchasers of Accepted Notes embody the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersede all prior agreements and understandings relating to such
subject matter.
11G. Successors and Assigns. All covenants and other agreements
in this Agreement contained by or on behalf of any of the parties hereto
shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto (including, without limitation, any
Transferee) whether so expressed or not.
11H. Disclosure to Other Persons; Confidentiality. Except as
provided in this paragraph 11H, each holder and each Person who purchases
a participation in a Note or any part thereof agrees that it will use its
best efforts to hold in confidence and not to disclose the Confidential
Information. The Company acknowledges that the holder of any Note may
deliver copies of any financial statements and other documents delivered
to such holder, and disclose any other information disclosed to such
holder, by or on behalf of the Company or any Subsidiary in connection
with or pursuant to this Agreement to (i) such holder's directors,
officers, employees, agents and professional consultants, (ii) any
other holder of any Note, (iii) any Person to which such holder offers
to sell such Note or any part thereof, (iv) any Person to which such
holder sells or offers to sell a participation in all or any part of
such Note, (v) any federal or state regulatory authority having
jurisdiction over such holder, (vi) the National Association of Insurance
Commissioners or any similar organization or (vii) any other Person to which
such delivery or disclosure may be necessary or appropriate (a) in
compliance with any law, rule, regulation or order applicable to such
holder, (b) in response to any subpoena or other legal process or
informal investigative demand, (c) in connection with any litigation to
which such holder is a party or (d) in order to protect such holder's
investment in such Note; provided that prior to disclosing Confidential
Information to any offeree referred to in clause (iii) and (iv) above,
such holder will use its best efforts to have such offeree deliver to
the Company a confidentiality agreement substantially in the form of
Exhibit F hereto.
11I. Notices. All written communications provided for hereunder
(other than communications provided for under paragraph 2) shall be sent
by first class mail or nationwide overnight delivery service (with
charges prepaid) and (i) if to any Person listed in the Information
Schedule attached hereto, addressed to it at the address specified
for such communications in such Information Schedule, or at such other
address as it shall have specified in writing to the Person sending such
communication, and (ii) if to any Purchaser or holder of any Note which is
not a Person listed in such Information Schedule, addressed to it at such
address as it shall have specified in writing to the Person sending such
communication or, if any such holder shall not have so specified an
address, then addressed to such holder in care of the last holder of such
Note which shall have so specified an address to the Person sending such
communication, provided, however, that any such communication to the
Company may also, at the option of the Person sending such communication,
be delivered by any other means either to the Company at its address
specified in the Information Schedule or to any Authorized Officer of
the Company. Any communication pursuant to paragraph 2 shall be made
by the method specified for such communication in paragraph 2, and shall
be effective to create any rights or obligations under this Agreement only
if, in the case of a telephone communication, an Authorized Officer of
the party conveying the information and of the party receiving the
information are parties to the telephone call, and in the case of a
telecopier communication, the communication is signed by an Authorized
Officer of the party conveying the information, addressed to the attention of
an Authorized Officer of the party receiving the information, and in fact
received at the telecopier terminal the number of which is listed for the
party receiving the communication in the Information Schedule or at such
other telecopier terminal as the party receiving the information shall
have specified in writing to the party sending such information.
11J. Payments Due on Non-Business Days. Anything in this Agreement
or the Notes to the contrary notwithstanding, any payment of principal of or
interest on, or Yield-Maintenance Amount payable with respect to, any Note
that is due on a date other than a Business day shall be made on the next
succeeding Business Day. If the date for any payment is extended to the
next succeeding Business Day by reason of the preceding sentence, the
period of such extension shall be included in the computation of the
interest payable on such Business Day.
11K. Satisfaction Requirement. If any agreement, certificate or
other writing, or any action taken or to be taken, is by the terms of this
Agreement required to be satisfactory to any Purchaser, to any holder of
Notes or to the Required Holder(s), the determination of such satisfaction
shall be made by such Purchaser, such holder or the Required Holder(s),
as the case may be, in the sole and exclusive judgment (exercised in
good faith) of the Person or Persons making such determination.
11L. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES
SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK.
11M. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
11N. Descriptive Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
11O. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
11P. Binding Agreement. When this Agreement is executed and
delivered by the Company and Prudential, it shall become a binding agreement
between the Company and Prudential. This Agreement shall also inure to the
benefit of each Purchaser which shall have executed and delivered a
Confirmation of Acceptance, and each such Purchaser shall be bound by this
Agreement to the extent provided in such Confirmation of Acceptance.
If you are in agreement with the foregoing, please sign the form
of acceptance on the enclosed counterpart of this letter and return the
same to the Company, whereupon this letter shall become a binding agreement
between the Company and you.
Very truly yours,
SEALRIGHT CO., INC.
By /s/ Xxxx X. Xxxxxx
Title: Vice President
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By /s/ Xxxxxx Xxxxxx
Vice President
INFORMATION SCHEDULE
Prudential/Purchaser(s)
The Prudential Insurance Company
of America
Series A Notes.
(1) All payments on account of the
Series A Notes held by such purchaser
shall be made by wire transfer of
immediately available funds for credit to:
Account Xx. 000-00-000
Xxxxxx Xxxxxxxx Trust Company of
New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(ABA No.: 021-000-238)
Each such wire transfer shall set forth
the name of the Company, a reference
to "9.07% Senior Notes, Series A, due
October 17, 2010, Security No.
!INV5220!", and
the due date and application (as among
principal, interest and Yield-
Maintenance Amount) of the payment
being made.
(2) Address for all notices relating
to payments:
The Prudential Insurance Company of
America
c/o Prudential Capital Group
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Investment Operations Group
(Attention: Manager)
(3) Address for all other
communications
and notices:
The Prudential Insurance Company of
America
c/o Prudential Capital Group
0000 Xxx Xxxxxx - Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Managing Director
(4) Recipient of telephonic or facsimile
prepayment notices:
Manager, Investment Structure and
Pricing
(000) 000-0000
(000) 000-0000 (facsimile)
(5) Tax Identification No.: 00-0000000
(6) Authorized Officers:
X. X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Prudential/Purchaser(s)
Other Series as completed and delivered
with Confirmation of Acceptance.
The Prudential Insurance Company
of America
(1) All payments on account of Notes
held by such purchaser shall be made by
wire transfer of immediately available
funds for credit to:
Account Xx. 000-00-000
Xxxxxx Xxxxxxxx Trust Company of
New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(ABA No.: 021-000-238)
Each such wire transfer shall set forth
the name of the Company, a reference
to "_____% Senior Notes, Series ____,
due __________, Security No.
!INV____!", and
the due date and application (as among
principal, interest and Yield-
Maintenance Amount) of the payment
being made.
(2) Address for all notices relating
to payments:
The Prudential Insurance Company of
America
c/o Prudential Capital Group
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Investment Operations Group
(Attention: Manager)
(3) Address for all other
communications
and notices:
The Prudential Insurance Company of
America
c/o Prudential Capital Group
0000 Xxx Xxxxxx - Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Managing Director
(4) Recipient of telephonic or facsimile
prepayment notices:
Manager, Investment Structure and
Pricing
(000) 000-0000
(000) 000-0000 (facsimile)
(5) Tax Identification No.: 00-0000000
(6) Authorized Officers:
X. X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
The Company
Sealright Co., Inc.
(1) Address for Notices:
Sealright Co., Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Vice President - Finance
(2) Receipt of telephonic or facsimile
notices:
(000) 000-0000
(000) 000-0000 (facsimile)
(3) Authorized Officers:
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxx SCHEDULE 6G
EXISTING LIENS
SCHEDULE 6H
EXISTING INDEBTEDNESS
SCHEDULE 8A
LIST OF SUBSIDIARIES
SCHEDULE 8G
LIST OF AGREEMENTS RESTRICTING DEBT
EXHIBIT A-1
[FORM OF NOTE]
SEALRIGHT CO., INC.
% SENIOR NOTE, SERIES , DUE
No. R-
ORIGINAL PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE:
INTEREST RATE:
INTEREST PAYMENT DATES:
FINAL MATURITY DATE:
PRINCIPAL PREPAYMENT DATES AND AMOUNTS:
DESIGNATED SPREAD: [0.00%]
FOR VALUE RECEIVED, the undersigned, SEALRIGHT CO., INC. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Delaware, hereby promises to pay to , or
registered assigns, the principal sum of
DOLLARS [on the Final Maturity Date
specified above] [, payable in installments on the Principal Prepayment
Dates and in the amounts specified above, and on the Final Maturity Date
specified above in an amount equal to the unpaid balance of the principal
hereof,] with interest (computed on the basis of a 360-day year--30-day
month) (a) on the unpaid balance thereof from the date hereof
at the Interest Rate per annum specified above, payable on each Interest
Payment Date specified above and on the Final Maturity Date specified
above, commencing with the Interest Payment Date next succeeding the date
hereof, until the principal hereof shall have become due and payable, and
(b) on any overdue payment (including any overdue prepayment) of principal,
any overdue payment of interest, and any overdue payment of any Yield-
Maintenance Amount (as defined in the Master Shelf Agreement referred to
below), payable on each Interest Payment Date as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum
from time to time equal to the greater of (i) ____% or (ii) 2% over the
rate of interest publicly announced by Xxxxxx Guaranty Trust Company of
New York from time to time in New York City as its Prime Rate.
Payments of principal of, interest on and any Yield-Maintenance Amount
payable with respect to this Note are to be made at the main office of Xxxxxx
Guaranty Trust Company of New York in New York City or at such other place
as the holder hereof shall designate to the Company in writing, in lawful
money of the United States of America.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to a Master Shelf Agreement, dated as of October 17, 1995
(herein called the "Agreement"), between the Company and The Prudential
Insurance Company of America and is entitled to the benefits thereof.
As provided in the Agreement, this Note is subject to prepayment, in
whole or from time to time in part on the terms specified in the Agreement.
This Note is a registered Note and, as provided in the Agreement, upon
surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the
registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name
this Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company shall not be affected
by any notice to the contrary.
The Company agrees to make scheduled prepayments of principal on the dates
and in the amounts specified herein. This Note is also subject to optional
prepayment, in whole or from time to time in part, on the terms specified
in the Agreement.
In case an Event of Default, as defined in the Agreement, shall occur and
be continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner and with the effect provided in the
Agreement.
The Agreement contains certain confidentiality provisions binding on the
holder of this Note.
This Note is intended to be performed in the State of New York and shall
be construed and enforced in accordance with the law of such State.
SEALRIGHT CO., INC.
By Vice President
EXHIBIT A-2
[FORM OF SERIES A NOTE]
SEALRIGHT CO., INC.
7.09% SENIOR NOTE, SERIES A, DUE OCTOBER 17, 2010
No. R-
ORIGINAL PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE:
INTEREST RATE: 7.09%
INTEREST PAYMENT DATES: January 17, April 17, July 17 and October 17 of each
year
FINAL MATURITY DATE: October 17, 2010
PRINCIPAL PREPAYMENT DATES AND AMOUNTS:
DESIGNATED SPREAD: 0.00%
FOR VALUE RECEIVED, the undersigned, SEALRIGHT CO., INC. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Delaware, hereby promises to pay to , or
registered assigns, the principal sum of
DOLLARS payable in installments on the Principal Prepayment Dates and in
the amounts specified above, and on the Final Maturity Date specified
above in an amount equal to the unpaid balance of the principal hereof,
with interest (computed on the basis of a 360-day year--30-day month) (a)
on the unpaid balance thereof from the date hereof at the Interest Rate
per annum specified above, payable on each Interest Payment Date specified
above and on the Final Maturity Date specified above, commencing with the
Interest Payment Date next succeeding the date hereof, until the principal
hereof shall have become due and payable, and (b) on any overdue payment
(including any overdue prepayment) of principal, any overdue payment
of interest, and any overdue payment of any Yield-Maintenance Amount
(as defined in the Master Shelf Agreement referred to below), payable
on each Interest Payment Date as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to
time equal to the greater of (i) 9.09% or (ii) 2% over the rate of
interest publicly announced by Xxxxxx Guaranty Trust Company of New York
from time to time in New York City as its Prime Rate.
Payments of principal of, interest on and any Yield-Maintenance Amount
payable with respect to this Note are to be made at the main office of Xxxxxx
Guaranty Trust Company of New York in New York City or at such other place
as the holder hereof shall designate to the Company in writing, in lawful
money of the United States of America.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to a Master Shelf Agreement, dated as of October 17, 1995
(herein called the "Agreement"), between the Company and The Prudential
Insurance Company of America and is entitled to the benefits thereof. As
provided in the Agreement, this Note is subject to prepayment, in whole
or from time to time in part on the terms specified in the Agreement.
This Note is a registered Note and, as provided in the Agreement, upon
surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the
registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name
this Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company shall not be affected
by any notice to the contrary.
The Company agrees to make scheduled prepayments of principal on the dates
and in the amounts specified herein. This Note is also subject to optional
prepayment, in whole or from time to time in part, on the terms specified
in the Agreement.
In case an Event of Default, as defined in the Agreement, shall occur and
be continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner and with the effect provided in the
Agreement.
The Agreement contains certain confidentiality provisions binding on the
holder of this Note.
This Note is intended to be performed in the State of New York and shall
be construed and enforced in accordance with the law of such State.
SEALRIGHT CO., INC.
By Vice President
EXHIBIT B
[FORM OF REQUEST FOR PURCHASE]
SEALRIGHT CO., INC.
Reference is made to the Master Shelf Agreement (the "Agreement"),
dated as of October 17, 1995, between Sealright Co., Inc. (the "Company") and
The Prudential Insurance Company of America. All terms used herein that
are defined in the Agreement have the respective meanings specified in the
Agreement.
Pursuant to Paragraph 2D of the Agreement, the Company hereby makes
the following Request for Purchase:
1. Aggregate principal amount of
the Notes covered hereby
(the "Notes") ................... $
2. Individual specifications of the Notes:
Principal
Final Installment Interest
Principal Maturity Dates and Payment
Amount Date Amounts Period
3. Use of proceeds of the Notes:
4. Proposed day for the closing of the purchase and sale of the
Notes:
5. The purchase price of the Notes is to be transferred to:
Name and
Name and Address Number of Telephone No.
of Bank Account of Bank Officer
6. The Company certifies (a) that the representations and warranties
contained in paragraph 8 of the Agreement are true on and as of the date
of this Request for Purchase except to the extent of changes caused by
the transactions contemplated in the Agreement [and except to the
extent set forth herein] [See paragraph 8B] and (b) that there exists
on the date of this Request for Purchase no Event of Default or Default.
7. Designated Spread: __________________
Dated:
SEALRIGHT CO., INC.
By
Authorized Officer
EXHIBIT C
[FORM OF CONFIRMATION OF ACCEPTANCE]
SEALRIGHT CO., INC.
Reference is made to the Master Shelf Agreement (the "Agreement"), dated
as of October 17, 1995, between Sealright Co., Inc. (the "Company") and The
Prudential Insurance Company of America. All terms used herein that are
defined in the Agreement have the respective meanings specified in the
Agreement.
Each of the undersigned institutions which is named below as a Purchaser
of any Accepted Notes hereby confirms the representations as to such Accepted
Notes set forth in paragraph 9 of the Agreement, and agrees to be bound by the
provisions of paragraphs 2F and 2H of the Agreement relating to the
purchase and sale of such Accepted Notes.
Pursuant to paragraph 2F of the Agreement, an Acceptance with respect to
the following Accepted Notes is hereby confirmed:
I. Aggregate principal amount $
(A) (a) Name of Purchaser:
(b) Principal amount:
(c) Final maturity date:
(d) Principal installment dates and amounts:
(e) Interest rate:
(f) Interest payment period:
(B) (a) Name of Purchaser:
(b) Principal amount:
(c) Final maturity date:
(d) Principal installment dates and amounts:
(e) Interest rate:
(f) Interest payment period:
[(C),(D) ....: same information as to any other Purchaser
II. Closing Day:
III. Facility Fee:
IV. Designated Spread:
Dated:
SEALRIGHT CO., INC.
By
Title:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By
Vice President
[Signature block for each named
Purchaser other than Prudential]
EXHIBIT D
[FORM OF OPINION OF COMPANY'S COUNSEL]
[Letterhead of Xxxxx Xxxx]
[Date of Closing]
[Name(s) and address(es) of
purchaser(s)]
Dear Sirs:
We have acted as counsel for Sealright Co., Inc. (the "Company") in
connection with the Master Shelf Agreement, dated as of October 17 1995,
between the Company and The Prudential Insurance Company of America (the
"Agreement"), pursuant to which the Company has issued to you today Senior
Notes of the Company in the aggregate principal amount of $
(the "Notes"). All terms used herein that are defined in the Agreement
have the respective meanings specified in the Agreement. This letter is
being delivered to you in satisfaction of the condition set forth in
paragraph 3A(v) of the Agreement and with the understanding that you are
purchasing the Notes in reliance on the opinions expressed herein.
[Please note a counterpart opinion is being delivered to you herewith
interpreting the laws of the State of Kansas.]
In this connection, we have examined such certificates of public
officials, certificates of officers of the Company and copies certified
to our satisfaction of corporate documents and records of the Company
and of other papers, and have made such other investigations, as we
have deemed relevant and necessary as a basis for our opinion hereinafter
set forth. We have relied upon such certificates of public officials and
of officers of the Company with respect to the accuracy of material
factual matters contained therein which were not independently established.
With respect to the opinion expressed in paragraph 4 below, we have also
relied upon the representation made by [each of] you, and by each other
Purchaser, in paragraph 9A of the Agreement.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware; each Subsidiary
is a corporation duly organized and validly existing in good standing
under the laws of its jurisdiction of incorporation.
2. The Company and its Subsidiaries have the corporate power to carry
on their respective businesses as now being conducted and each is duly
qualified as a foreign corporation and in good standing in each jurisdiction
where the [nature of the business transacted or properties owned by it
makes such qualification necessary][failure to be so qualified would have
a material adverse effect on the Company or its Subsidiaries taken as
a whole].
3. The Agreement and the Notes have been duly authorized by all
requisite corporate action and duly executed and delivered by authorized
officers of the Company, and are valid obligations of the Company,
legally binding upon and enforceable against the Company in accordance
with their respective terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and (b)
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law), and the Notes are
entitled to the benefits of the Agreement.
4. It is not necessary in connection with the offering, issuance,
sale and delivery of the Notes under the circumstances contemplated by
the Agreement to register the Notes under the Securities Act or to qualify
an indenture in respect of the Notes under the Trust Indenture Act of 1939,
as amended.
5. The extension, arranging and obtaining of the credit represented
by the Notes do not result in any violation of Regulation G or X of the
Board of Governors of the Federal Reserve System.
6. The execution and delivery of the Agreement and the Notes, the
offering, issuance and sale of the Notes and fulfillment of and compliance
with the respective provisions of the Agreement and the Notes do not
conflict with, or result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in any violation of, or result
in the creation of any Lien upon any of the properties or assets of
the Company or any of its Subsidiaries pursuant to, or require any
authorization, consent, approval, exemption, or other action by or
notice to or filing with any court, administrative or governmental body or
other Person (other than routine filings after the date hereof with the
Securities and Exchange Commission and/or state Blue Sky authorities)
pursuant to, the charter or by-laws of the Company or any of its
Subsidiaries, any applicable law (including any securities or Blue Sky
law), statute, rule or regulation or (insofar as is known to us after
having made due inquiry with respect thereto) any agreement (including,
without limitation, any agreement listed in Schedule 8G to the Agreement),
instrument, order, judgment or decree to which the Company or any of its
Subsidiaries is a party or otherwise subject.
7. A New York court properly applying the conflicts of laws
principles of the State of New York would give effect to the choice of
law provisions of the Note Agreement and the Notes and would not apply
the substantive law of the State of Kansas to the Note Agreement or
the Notes.
This opinion is not rendered with respect to any laws other than the
laws of the State of New York, the State of Kansas, the Federal law of
the United States and the General Corporation Law of the State of Delaware.
A copy of this letter may be delivered by you or any Transferee to any
Person to which you or such Transferee sells or offers to sell any Note or a
participation in any Note, and such Person may rely upon this letter as if
it were addressed and had been delivered to such Person on the date hereof.
Subject to the foregoing, this letter may be relied upon by you only in
connection with the transactions contemplated by the Agreement and may
not be used or relied upon by you or any other Person for any other
purpose whatsoever, without our prior written consent.
Very truly yours,
EXHIBIT E
[FORM OF CONFIDENTIALITY LETTER]
__________________________, 19___
Sealright Co., Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxx 00000
Dear Sirs:
In connection with our possible interest in purchasing ______% Senior
Notes due _____________________ of Sealright Co., Inc. (the "Company") from
[name of Seller of Notes] (the "Seller") the Seller or the Company may
furnish us with certain information that is non-public, confidential or
proprietary in nature.
As used herein, "Confidential Information" means information about the
Company furnished by the Seller or the Company to us, but does not include
information (i) which was publicly known, or otherwise known to us, at
the time of disclosure, (ii) which subsequently becomes publicly known
through no act or omission by us, or (iii) which otherwise becomes known
to us, other than through disclosure by the Seller or the Company.
We agree that we will use our best efforts to hold in confidence and
not to disclose the Confidential Information, except (a) as may be required
by law, and (b) to our and our subsidiaries' officers, directors,
employees, agents and professional consultants in connection with the
purchase of such Notes or a participation therein; provided that we will
be free, after notice to the Company, to correct any false or misleading
information which may become public concerning our relationship to the
Company or our purchase of the Notes or a participation therein.
Upon termination of our consideration of such purchase, we will if
requested by the Seller or the Company, return to the Seller or the Company
all documents furnished by the Seller or the Company to us containing
Confidential Information which have not theretofore been destroyed or
returned to the Seller or the Company.
Very truly yours,
[NAME OF PURCHASER]
By:____________________________
